[Congressional Record Volume 149, Number 154 (Wednesday, October 29, 2003)]
[House]
[Pages H10090-H10106]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MOTION TO INSTRUCT CONFEREES ON H.R. 6, ENERGY POLICY ACT OF 2003
Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I offer a motion to
instruct conferees.
The SPEAKER pro tempore. The Clerk will report the motion.
The Clerk read as follows:
(1) The House conferees shall be instructed to include in
the conference report the provisions of section 837 of the
Senate Amendment that concern reformulated gasoline in ozone
nonattainment areas and ozone transport regions under the
Clean Air Act.
(2) The House conferees shall be instructed to confine
themselves to matters committed to conference in accordance
with clause 9 of rule XXII of the House of Representatives
with regard to any matters relating to ozone nonattainment
and ozone transport.
[[Page H10091]]
The SPEAKER pro tempore. Pursuant to clause 7 of rule XXII, the
gentlewoman from Texas (Ms. Eddie Bernice Johnson) and the gentleman
from Texas (Mr. Barton) each will control 30 minutes.
The Chair recognizes the gentlewoman from Texas (Ms. Eddie Bernice
Johnson).
Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I yield myself such
time as I may consume.
My motion to instruct the energy conferees is very, very simple.
There is no provision in the House or Senate energy bills that allow
ozone nonattainment areas to extend, or ``bump up,'' deadlines to
comply with the Clean Air Act.
Now, House GOP energy conferees, including my respected colleague,
the gentleman from Texas (Mr. Barton), want to include a rider in the
energy conference report to overturn four Federal court rulings and
amend the Clean Air Act to allow polluted areas to have more time to
clean up, but without having to implement air pollution controls. Every
time one looks up, it is another extension. This would delay the
adoption of urgently needed antipollution measures in communities
throughout the country.
Industry officials, environmentalists, local elected officials, the
Texas Commission on Environmental Quality, and the Environmental
Protection Agency have been working hard in recent months to find a way
of complying with the ozone standards in north Texas. The Barton
provision destroys that process.
This special interest rider also shows reckless disregard for the
health consequences that dirty air has on my constituents and others
that live in smoggy cities across the country.
To further delay necessary emissions reductions in ozone
nonattainment areas is unacceptable and a betrayal of the public's
trust. It is unacceptable, most of all, because it is based on false
information that ozone transport jeopardizes attainment for smoggy
cities.
An article in my hometown newspaper, the Dallas Morning News, states
today that documents and interviews from the Bush administration's EPA
show little or no evidence to support claims that Houston's smog is
harming the Dallas-Fort Worth attainment of clean air goals.
This is not about jobs versus clean air; this is about a small set of
areas seeking to avoid their responsibility under the Clean Air Act,
thereby gaining a competitive advantage over other industries in other
areas that have complied. The disadvantaged area is quite likely to be
in your district.
This provision is blatantly unfair to my constituents and the
gentleman from Texas's (Mr. Barton) constituents who write me all the
time and live down wind from the smokestacks in my colleague's
district. Under this provision, dirty, unhealthy air will continue to
blow downward on to my constituents, possibly until the year 2012.
I am a nurse by profession. The health effects of air pollution
imperil human lives. Ozone pollution burns cell walls in the lungs and
air passages, causing tissues to swell, chest pain, coughing,
irritation, and congestion. Ozone pollution decreases the ability of
lungs to function properly. Air pollution aggravates asthma and
increases susceptibility to bacterial infection. Long-term exposure to
ozone in otherwise healthy individuals could set the stage for more
serious illnesses. The cost for asthma, estimated at $11 billion
annually, is only part of the total cost of the health care
necessitated by exposure to harmful levels of ozone.
The American Lung Association reports that exposure to high levels of
ozone air pollution appears to be responsible for up to 50,000
emergency room visits and up to 15,000 hospitalizations for respiratory
problems each year. I had a dear friend lose her life this year from
this very ailment, a 51-year-old M.D. who had never smoked a cigarette.
In my district, the effects of air pollution are especially
compelling. The American Lung Association reports that nearly a half
million people in the Dallas-Fort Worth area live with diseases that
are aggravated by air pollution. EPA's own consultants found that each
year almost 370 residents of the Dallas-Fort Worth area died just
because of pollution from the oldest and dirtiest unregulated power
plants, and 10,500 asthma attacks are triggered.
To further delay compliance and cleanup will increase health care
costs for my constituents at a time when the health care system is
broken. Clean air is crucial to the health of north Texans and the
future economic well-being of our region.
The Barton ``bump-up'' provision has no business in the energy bill.
I suggest that if my colleague from Texas (Mr. Barton) and my
colleague from Louisiana (Mr. Tauzin), gentlemen I respect, wish to
amend the Clean Air Act, they should do so by showing respect for our
legislative process and by using a more appropriate legislative
vehicle. But instead, they have language they are not even sharing with
people to do it.
Enough is enough. Hard deadlines are necessary to get the job done
and clean up our air. This time has been lengthened and lengthened and
lengthened and, each time, what is the answer? Another lengthened time.
Our Republican colleagues cannot continue to delay and stall. We have
a greater obligation to protect public health than polluters' profits
and campaign contributions.
I am disappointed that many Republicans will frame this debate as a
trade-off between jobs and the environment. They are dead wrong. I urge
my colleagues to vote against giving a clean air holiday to a few areas
with the right political connections. I ask my colleagues to put the
public health ahead of polluters' profits. Please vote for the motion
to instruct.
Mr. Speaker, I reserve the balance of my time.
Mr. BARTON of Texas. Mr. Speaker, I yield myself such time as I may
consume.
First, Mr. Speaker, I want to say I have nothing but the highest
personal regard for the gentlewoman from Texas who is offering this
motion to instruct conferees. She and I have served together in this
body for, I think, approximately 11 years; and we have worked together
on many, many issues and spent many, many moments together in very
positive dialogue, and I appreciate her bringing this issue to the
floor. My objection to the resolution is based on the policy, not on
the person who is bringing the resolution.
I do rise in opposition, respectfully, to the Johnson motion to
instruct. To put it in the simplest terms, the issue before us today is
not whether any Member of this body does not want the cleanest air
possible for our citizens; the issue is whether we want to apply common
sense to the Clean Air Act and to codify Clinton administration policy
that was explicitly designed to avoid what the EPA, under the Clinton
administration back in 1994, called an odd or even absurd result that
penalizes an area for pollution that is beyond their ability to
control.
Let me put this in language that everybody can understand. The Clean
Air Act amendments of 1990 categorized in a more definitive way ozone
as a pollutant that needed to be regulated, and it set standards. It is
the only pollutant in the act that has gradations of standards. For the
other controlled pollutants, it is kind of an in or out, yes or no,
pass or fail. But for ozone, it has different levels, from very
moderate to very severe; and each of the levels has a different
standard and a different timeline for compliance.
I am an author of the Clean Air Act amendments. I spoke for them on
the floor. I helped to work to put the bill together in the committee.
So I have some personal history in this issue.
As the Clean Air Act amendments of 1990 were being implemented, it
became apparent that there were many regions of this country that were
trying to comply; but because there were other areas down wind from
them that had a different timetable and a different compliance
criteria, it was making it difficult for some of these regions to
comply in the technical sense with the act. So the Clinton
administration came up with a proposal that said, we will show some
flexibility. If, in fact, you have a State implementation plan that has
been approved or is in the process of being approved and if, in fact,
it looks like you are making a good-faith effort to come into
compliance, we will give you an extension if we think it is meritorious
and the reason that you need the extension is because there is another
region that is not in compliance that is transporting their ozone
pollution to you. That is common sense. There is nothing wrong with
that.
[[Page H10092]]
I want to put into the Record at this point in time, Mr. Speaker, the
1994 Clinton administration policy that was contained in a memorandum
signed by then-Assistant Administrator for Air and Radiation, Mary
Nichols. This memorandum attempted to reconcile the conflicting
provisions of the Clean Air Act and to give effect to as much of
Congress' manifest intent as possible. I also want to put into the
Record the 1998 Clinton administration policy on this issue that was
actually published in the Federal Register.
Environmental Protection Agency
Extension of Attainment Dates for Downwind Transport Areas
Agency: Environmental Protection Agency (EPA).
Action: Proposed interpretation; request for comments.
Summary: Today's notice announces EPA's interpretation of
the Clean Air Act (Act) regarding the possibility of
extending attainment dates for ozone nonattainment areas that
have been classified as moderate or serious for the 1-hour
standard and which are downwind of areas that have interfered
with their ability to demonstrate attainment by dates
prescribed in the Act. The guidance memorandum that is being
printed in today's notice is entitled ``Extension of
Attainment Dates for Downwind Transport Areas'' and was
signed by Richard D. Wilson, Acting Assistant Administrator
for Air and Radiation, on July 16, 1998. This notice follows
up on the statement made in the guidance memorandum that EPA
would request comments on its interpretation.
A number of areas may find themselves facing the prospect
of being reclassified or ``bumped up'' to a higher
classification in spite of the fact that pollution beyond
their control contributes to the levels of ozone they
experience. The notice addresses the problem by providing an
avenue to extend the attainment dates for areas affected by
transported pollution. The EPA intends to finalize the
interpretation in this guidance only when it applies in the
appropriate context of individual rulemakings addressing
specific attainment demonstrations and requests for
attainment date extensions. If EPA approves an area's
attainment demonstration and attainment date extension
request, the area would no longer be subject to bump up for
failure to attain by its original attainment date.
Dates: The EPA is establishing an informal 30-day comment
period for today's notice, ending on [insert date 30 days
after date of publication in the Federal Register].
Addresses: Documents relevant to this action are available
for inspection at the Air and Radiation Docket and
Information Center (6101), Attention: Docket No. A-98-47, US
Environmental Protection Agency, 401 M Street, SW, Room M-
1500, Washington, DC 20460, telephone (202) 260-7548, between
8 a.m. and 4 p.m., Monday through Friday, excluding legal
holidays. A reasonable fee may be charged for copying.
Written comments should be submitted to this address.
For Further Information Contact: Denise Gerth, Air Quality
Strategies and Standards Division, Office of Air Quality
Planning and Standards, US Environmental Protection Agency,
MD-15, Research Triangle Park, NC 27711, telephone (919) 541-
5550.
Supplementary Information: On July 16, 1998, the following
guidance was issued by Richard Wilson, Acting Assistant
Administrator for Air and Radiation. It should be noted that
the July 16, 1998 memorandum reprinted in this notice refers
to EPA's proposed NOx SIP call. After the
memorandum was signed, EPA took final action on the SIP call
and promulgated a final rule. See 63 FR 57356 (October 27,
1998).
Guidance on extension of attainment dates for downwind transport areas
Preface
The purpose of this guidance is to set forth EPA's current
views on the issues discussed herein. EPA intends soon to set
out its interpretation in an advance notice of proposed
rulemaking on which the Agency will take comment.
While EPA intends to proceed under the guidance that it is
setting out today, the Agency will finalize this
interpretation only when it applies in the appropriate
context of individual rulemakings addressing specific
attainment demonstrations. At that time and in that context,
judicial review of EPA's interpretation would be available.
Introductory Summary
A number of areas in the country that have been classified
as moderate or serious nonattainment areas for the 1-hour
ozone standard are affected by pollution transported from
upwind areas. For these downwind areas, transport from upwind
areas has interfered with their ability to demonstrate
attainment by the dates prescribed in the Clean Air Act
(Act). As a result, many of these areas find themselves
facing the prospect of being reclassified, or ``bumped
up,'' to a higher nonattainment classification in spite of
the fact that pollution that is beyond their control
contributes to the levels of ozone they experience. In the
policy being issued today, EPA is addressing this problem
by planning to extend the attainment date for an area that
is affected by transport from either an upwind area with a
later attainment date or an upwind area in another State
that significantly contributes to downwind nonattainment,
as long as the downwind area has adopted all necessary
local measures, and has submitted an approvable attainment
plan to EPA which includes those local measures. (By
``affected by transport,'' EPA means an area whose air
quality is affected by transport from an upwind area to a
degree that affects the area's ability to attain.) EPA
intends to initiate rulemaking for each area seeking such
relief and contemplates providing such relief to those who
qualify. If after consideration of public comments EPA
acts to approve an area's attainment demonstration and
extend its attainment date, the area will no longer be
subject to reclassification or ``bump-up'' for failure to
attain by its otherwise applicable attainment date.
Background
The Act may be interpreted to allow a later attainment date
than generally applicable to a particular ozone nonattainment
area if transport of ozone or its precursors (nitrogen oxides
(NOX) and volatile organic compounds (VOCs))
prevents timely attainment. This principle has already been
advanced in EPA's Overwhelming Transport Policy, which
allowed a downwind area to assume the later attainment date
if it could meet certain criteria, including a demonstration
that it would have attained ``but for'' transport from an
upwind nonattainment area with a later attainment date. See
Memorandum from Mary D. Nichols, Assistant Administrator for
Air and Radiation, entitled, ``Ozone Attainment Dates for
Areas Affected by Overwhelming Transport,'' September 1,
1994. In the four years since the issuance of that
memorandum, the history of the efforts to analyze and control
ozone transport has led EPA to believe that it should expand
the policy's reach to ensure that downwind areas are not
unjustly penalized as a result of transport.
In March 1995, EPA called for a collaborative, Federal-
State process for assessing the regional ozone transport
problem and developing solutions, and the Ozone Transport
Assessment Group (OTAG) was subsequently formed. See
Memorandum from Mary D. Nichols, Assistant Administrator for
Air and Radiation, entitled ``Ozone Attainment
Demonstrations,'' March 2, 1995. The OTAG was an informal
advisory committee with representatives from EPA, thirty-
seven states in the Midwestern and eastern portions of the
country, and industry and environmental groups. OTAG's major
functions included developing computerized modeling analyses
of the impact of various control measures on air quality
levels throughout the region and making recommendations as to
the appropriate ozone control strategy. Based on OTAG's
modeling analyses, it developed recommendations concerning
control strategies. These recommendations, issued in mid-
1997, called upon EPA to calculate the specific reductions
needed from upwind areas.
In November 1997, using OTAG's technical work, EPA issued a
proposed NOX State implementation plan (SIP) call,
directing certain States to revise their SIPs in order to
satisfy section 110(a)(2)(D) by reducing emissions of
NOX to specified levels, which in turn will reduce
the amounts of ozone being transported into nonattainment
areas from upwind areas. 62 FR 60318 (November 7, 1997). In
July 1997, the EPA promulgated a revised 8-hour ozone NAAQS.
62 FR 38856 (July 18, 1997). That promulgation included
regulations providing that the 1-hour NAAQS would be phased
out, and would not longer apply to an area once EPA
determined that the area had air quality meeting the 1-hour
standard. 40 CFR section 50.9(b). Until the 1-hour standard
is revoked for a particular area, the area must continue to
implement the requirements aimed at attaining that standard.
The Current Problem
The Act called on areas classified as moderate ozone
nonattainment areas to submit SIPs that demonstrate
attainment by 1996 (unless they receive an extension), and
called on serious nonattainment areas to demonstrate
attainment by November 1999 (unless they receive an
extension). Section 181 and 182(b) and (c). For many of these
areas, EPA has preliminary determined in the proposed SIP
call that transport from upwind areas is contributing to
their nonattainment problems. Such transport also appears to
be interfering with their ability to demonstrate attainment
by the statutory attainment dates.
The graduated control scheme in sections 181 and 182 of the
Act expressed Congress's intent that areas be assigned
varying attainment dates, depending upon the severity of the
air quality problem they confront. Sections 181 and 182
provide for attainment ``as expeditiously as practicable,''
but establish later deadlines for attainment in more polluted
areas, and additional control measures that the more polluted
areas must accomplish over the longer time frame. Thus, many
of the upwind areas have later attainment dates than the
downwind areas which are affected by emissions from the
upwind States. On the other hand, section 110(a)(2)(D)(i)(I)
of the Act requires SIPs to prohibit ``consistent with the
other provisions of [title I],'' emissions which will
``contribute significantly to nonattainment in . . . any
other State.'' The EPA interprets section 110(a)(2)(A) to
incorporate the same requirement in the case of intrastate
transport. Sections 176A and 184 provide for regional ozone
transport commissions that may recommend that EPA mandate
additional regional control measures to allow
[[Page H10093]]
areas to reach timely attainment in accordance with section
110(a)(2)(D)(i)(I).
These provisions demonstrate Congressional intent that
upwind areas be responsible for preventing interference with
timely downwind attainment. They must be reconciled with
express Congressional intent that more polluted areas be
allotted additional time to attain. As EPA pointed out in its
overwhelming transport policy, Congress does not explicitly
address how these provisions are to be read together to
resolve the circumstances where more polluted upwind areas
interfere with timely attainment downwind, during the time
provided for those upwind areas to reduce their own
emissions.
In the 1994 overwhelming transport policy, EPA stated that
it would harmonize these provisions to avoid arguably absurd
or odd results and to give effect to as much of Congress'
manifest intent as possible. The EPA struck a balance in the
overwhelming transport policy by requiring that the upwind
and downwind areas reduce their contribution to the
nonattainment problem while avoiding penalizing the downwind
areas for failure to do the impossible.
In the 1994 policy, EPA reasoned that Congress did not
intend the section 110(a)(2)(D)(i)(I) obligation to supersede
the practicable attainment deadlines and graduated control
scheme in sections 181 and 182, especially since section
110(a)(2)(D)(i)(I) specifically applies only ``to the extent
consistent with the provisions of (title I).'' The same
rationale applies in the intrastate context under section
110(a)(2)(A).
Developments since the issuance of the overwhelming
transport policy in 1994 have prompted EPA once again to
interpret these provisions so that they can be reconciled in
light of existing circumstances. Since the issuance of that
policy, EPA and the States, through OTAG, have made
significant progress in addressing interstate transport in
the eastern United States, and have worked to analyze the
flow of transport and to allocate among the States their
respective responsibilities for control. During the period
required for this effort, which took longer than was
anticipated, the resolution of the regional transport issue
was held in abeyance. The effort to address regional
transport recently resulted in EPA's proposed NOX
SIP call, expected to be finalized in the next few months.
For areas in the OTAG region affected by transport, the
conclusion of the OTAG and SIP call processes in September
1998 will result in assignments of responsibility that will
assist in the design of SIPs and the formation and
implementation of attainment demonstrations.
Because EPA had not previously determined how much to
require upwind States in the OTAG region to reduce transport,
downwind areas were handicapped in their ability to determine
the amounts of emissions reductions needed to bring about
attainment. While operating in this environment of
uncertainty, many of these downwind areas confronted near-
term attainment dates. Moreover, as described in the
NOX SIP call proposal, the reductions from the
proposed NOX SIP call will not likely be achieved
until at least 2002, well after the attainment dates for many
of the downwind nonattainment areas that depend on those
reductions to help reach attainment.
The Solution
The EPA believes that a fair reading of the Act would allow
it to take these circumstances into account to harmonize the
attainment demonstration and attainment date requirements for
downwind areas affected by transport both with the graduated
attainment date scheme and the schedule for achieving
reductions in emissions from upwind areas. Thus, EPA will
consider extending the attainment date for an area that:
(1) has been identified as a downwind area affected by
transport from either an upwind area in the same State with a
later attainment date or an upwind area in another State that
significantly contributes to downwind nonattainment. (By
``affected by transport,'' EPA means an area whose air
quality is affected by transport from an upwind area to a
degree that affects the area's ability to attain);
(2) has submitted an approvable attainment demonstration
with any necessary, adopted local measures and with an
attainment date that shows that it will attain the 1-hour
standard no later than the date that the reductions are
expected from upwind areas under the final NOX SIP
call and/or the statutory attainment date for upwind
nonattainment areas, i.e., assuming the boundary conditions
reflecting those upwind reductions;
(3) has adopted all applicable local measures required
under the area's current classification and any additional
measures necessary to demonstrate attainment, assuming the
reductions occur as required in the upwind areas. (To meet
section 182(c)(2)(B), serious areas would only need to
achieve progress requirements until their original attainment
date of November 15, 1999);
(4) has provided that it will implement all adopted
measures as expeditiously as practicable, but no later than
the date by which the upwind reductions needed for attainment
will be achieved.
EPA contemplates that when it acts to approve such an
area's attainment demonstration, it will, as necessary,
extend that area's attainment date to a date appropriate for
that area in light of the schedule for achieving the
necessary upwind reductions. The area would no longer be
subject to reclassification or ``bump-up'' for failure to
attain by its original attainment date under section
181(b)(2).
Legal Rationale
The legal basis for EPA's interpretation of the attainment
date requirements employs and updates the rationale invoked
in the Agency's overwhelming transport policy. By filling a
gap in the statutory framework, EPA's interpretation
harmonizes the requirements of sections 181 and 182 with the
Act's requirements (sections 110(a)(2)(D)(i)(I),
110(a)(2)(A), 176A and 184) on inter-area transport. It
reconciles the principle that upwind areas are responsible
for preventing interference with downwind attainment with the
Congressional intent to provide longer attainment periods for
areas with more intractable air pollution problems. It also
takes into account the amount of time it will take to achieve
emission reductions in upwind areas under the NOX
SIP call, which EPA expects to finalize in September 1998.
The EPA's resolution respects the intent of sections 181
and 182 to provide longer attainment dates for areas burdened
with more onerous air pollution problems, while allowing
reductions from upwind areas to benefit the downwind areas.
Under EPA's interpretation, upwind areas will be required to
reduce emissions to control transport, but should not find
that the requirements imposed upon them amount to an
acceleration of the time frames Congress envisioned for
these areas in sections 181 and 182. Downwind areas will
be provided additional time to accommodate the delayed
control contributions from upwind areas, while at the same
time being held accountable for all measures required to
control local sources of pollution.
The EPA's interpretation of the Act allows it to extend
attainment dates only for those areas which are prevented
from achieving timely attainment due to a demonstrated
transport problem from upwind areas, and which submit
attainment demonstrations and adopt local measures to address
the pollution that is within local control. The EPA believes
that Congress, had it addressed this issue, would not have
intended downwind areas to be penalized by being forced to
compensate for transported pollution by adopting measures
that are more costly and onerous and/or which will become
superfluous once upwind areas reduce their contribution to
the pollution problem.
This interpretation also recognizes that downwind areas in
the OTAG region have been operating in a climate of
uncertainty as to the allocation of responsibility for
controlling transported pollution. Section 110(a)(2)(D) is
not self-executing and, until the NOX SIP call
rulemaking, downwind areas in the OTAG region could not
determine what boundary conditions they should assume in
preparing attainment demonstrations and determining the
sufficiency of local controls to bring about attainment. By
allowing these areas to assume the boundary conditions
reflecting reductions set forth in the NOX SIP
call and/or reductions from the requirements prescribed for
upwind nonattainment areas under the Act, EPA will hold
upwind areas responsible for reducing emissions of
transported pollution, and downwind areas will be obligated
to adopt and implement local controls that would bring about
attainment but for the transported pollution.
The EPA's interpretation harmonizes the disparate
provisions of the Act. It avoids accelerating the obligations
of the upwind States so that downwind States can meet earlier
attainment dates, which would subvert Congressional intent to
allow upwind areas with more severe pollution longer
attainment time frames to attain the ozone standards. In
addition, EPA's interpretation of the Act takes into account
the fact that, under the SIP call, upwind area reductions
will not be achieved until after the attainment dates for
moderate and serious ozone nonattainment areas. To refuse to
interpret the Act to accomplish this would unduly penalize
downwind areas by requiring them to compensate for the
transported pollution that will be dealt with by controls
adopted in response to the requirements of the NOX
SIP call or to achieve attainment in an upwind area. The EPA
is thus interpreting the requirements to allow the Agency to
grant an attainment date extension to areas that submit their
attainment demonstrations and all adopted measures necessary
locally to show attainment. This solution preserves the
responsibility of these downwind areas to prepare attainment
demonstrations and adopt measures, but does not penalize them
for failing to achieve timely attainment by reclassifying
them upwards, since such attainment was foreclosed by
transport beyond their control.
Under this policy, once EPA has acted to approve the
attainment demonstration and extend the area's attainment
date, the area would no longer be subject to reclassification
or ``bump-up'' for failure to attain by its original
attainment date under section 181(b)(2).
The EPA requests comment on the interpretation in the
guidance memorandum reprinted above.
Robert Perciasepe,
Assistant Administrator
for Air and Radiation.
[[Page H10094]]
____
Memorandum
Subject: Ozone Attainment Dates for Areas Affected by
Overwhelming Transport.
From: Mary D. Nichols, Assistant Administrator for Air and
Radiation (6101).
To: Director, Air, Pesticides and Toxics Management Division,
Regions I and IV; Director, Air and Waste Management
Division, Region II; Director, Air, Radiation and Toxics
Division, Region III; Director, Air and Radiation
Division, Region V; Director, Air, Pesticides and Toxics
Division, Region VI; and Director, Air and Toxics
Division, Regions VII, VIII, IX, and X.
The purpose of this memorandum is to provide guidance on
attainment dates for ozone nonattainment areas affected by
overwhelming transport. In particular, a number of States
have expressed concern that it may be difficult or impossible
for some areas to demonstrate attainment by the statutory
attainment date because they are affected by overwhelming
transport or pollutants and precursors from an upwind area
with higher classifications (and later attainment dates).
(Reference to upwind area in this memorandum and the
attachment may imply that there is more than one area
involved.) States containing such areas face difficulty in
complying with two specific requirements:
1. Submitting an attainment demonstration by November 15,
1994 that includes measures for specific reductions in ozone
precursors, as necessary, to attain by the statutory
attainment date.
2. Actually demonstrating attainment through monitoring
data by the statutory attainment date.
We believe that, due to conflicting provisions of the Act,
it is reasonable to temporarily suspend the attainment date
for these areas without bumping them up to a higher
classification for the purpose of the two requirements listed
above. A revised attainment date will be determined based on
the analyses described in the attachment to this memorandum.
The attachment also provides the legal rationale for this
approach, along with specific criteria that States must meet.
This policy does not relieve any State of the obligation to
meet any other requirement of the Act. This memorandum
describes current policy and does not constitute final
action. Final action will be taken in the context of notice-
and-comment rulemaking on the relevant SIP submittals.
This approach is premised on the requirement that the area
in question clearly demonstrates through modeling that
transport from an area with a later attainment date makes it
practicably impossible to attain the standard by its own
attainment date. This modeling is expected to be submitted on
the same schedule as the required modeled attainment
demonstration due November 15, 1994. The modeling must
support the new attainment date which should be as
expeditious as practicable, but no later than the attainment
date in its SIP.
The EPA encourages upwind and downwind areas to consult
with one another and the EPA Regional Offices to coordinate
on this issue. Immediately after the downwind area determines
that it plans to request an attainment date extension, it
should notify the appropriate Regional Office. The Regional
Office should then notify any affected upwind area of the
intentions of the downwind area and its obligations under
this policy. The EPA may use its authority under sections
110(a)(2)(D)(i)(I) and 110(k)(5) to issue a call for a SIP
revision for the upwind area to ensure that it provides the
necessary analyses and control measures needed to prevent
significant contribution to the downwind area's nonattainment
problem.
The attachment does not specifically address all of the
modeling issues related to this demonstration. We recommend
that Regions work with our Technical Support Division to
determine what is appropriate for each area.
The EPA is also developing a general transport policy that
will address situations where areas have difficulties
reaching or maintaining attainment because of large-scale
transport.
Please share this information with your States and
appropriate local air pollution control agencies. Any general
questions about this approach may be addressed to Kimber
Scavo at (919) 541-3354, or Laurel Schultz at (919) 541-5511.
Specific questions concerning modeling should be addressed to
Ellen Baldridge at (919) 541-5684.
{time} 1915
Mr. BARTON of Texas. Mr. Speaker, this policy built upon the 1994
statutory interpretation memorandum that we have just put into the
Record. And it indicated that the EPA considered its bump-up policy to
be a fair reading of the act.
Now, what happened after this 1994 memorandum and the 1998 Federal
Register, no Member of Congress complained about that. There was no
group of citizens that came to the Congress and complained about the
Clinton administration proposal. But what did happen was that in 2002,
the Sierra Club filed three different lawsuits in three different
regions, one of them here in the D.C. Circuit, one in the 5th Circuit,
and one in the 7th Circuit, and they really did not argue against the
policy of flexibility. They simply said the Clean Air Act did not give
the EPA that authority. It was a very technical argument. And, to their
credit, the Sierra Club's argument was upheld by the courts. The courts
said, ``We have read the Clean Air Act and it is ambiguous. And since
it is ambiguous, we have to say no to flexibility because it does not
explicitly state there can be flexibility.'' That was in 2002. Those
were lawsuits filed by the Sierra Club that went to court.
So we now fast forward to 2003. The gentleman from Louisiana (Mr.
Tauzin), the distinguished chairman of the full committee, and the
gentleman from Michigan (Mr. Upton), a member of the Committee on
Energy and Commerce, all worked with me and other members of the
committee on a bipartisan basis. We passed the most comprehensive
energy legislation this Congress has seen back in April, April 11, I
believe, on the floor of the House.
We, at that time, had not had time to study the effect of the court
ruling. We had not had time to put together a hearing on this issue.
But we did in July. In July we had a hearing in my subcommittee. We had
a number of witnesses testify, and, with one or two exceptions,
everybody who testified said this policy of flexibility is a good idea.
We should allow it.
Democrats, my good friend from Houston, the gentleman from Texas (Mr.
Green), my friend from Beaumont, the gentleman from Texas (Mr.
Lampson), my friend from Crockett, the gentleman from Texas (Mr.
Turner), they all came and brought some of their constituents who
testify or put testimony into the Record that said flexibility is good.
So as we went to conference with the other body, after consultation
with the minority leadership of the Committee on Energy and Commerce,
we put this in.
Mr. Speaker, I yield to the gentlewoman from Texas (Ms. Eddie Bernice
Johnson).
Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, this really is not a
partisan issue. It is a matter of clean air that people breathe. I am
certain there are people on that side of the aisle that will stand with
the gentlemen, who I consider both my good friends. But there will be
some probably who will not because they want to breathe some clean air.
That is all this is about. It has nothing to do with partisanship. It
has nothing to do with the Clinton administration. They have been given
time. That is all this indicates. They have already had time to clean
the air.
Mr. BARTON of Texas. Mr. Speaker, I thank my good friend, the
gentlewoman from Texas (Ms. Eddie Bernice Johnson), and I will continue
to yield to her because I think we should have a dialogue, but what I
am trying to point out is this is a commonsense policy that we have put
in or are attempting to put into the energy conference with the other
body. Because there is a lot of support for it and it gives the
flexibility, if the local region needs it. Everything in it is based on
a transport issue, and if the EPA says that it will help. That is all
it does.
Mr. TAUZIN. Mr. Speaker, would the gentleman yield?
Mr. BARTON of Texas. Mr. Speaker, I will be happy to yield.
Mr. TAUZIN. Mr. Speaker, let me make the most important point here.
Environmentalists for years have argued that we ought to have
environmental laws that require the polluter to pay, that the polluter
ought to be responsible for cleaning up his act and that the victims
ought not be responsible for the actions of polluters. That is
essentially what the EPA tried to do but was not allowed to do by the
court and what we are trying to let the EPA do today.
The polluter in this case is the upwind polluter, the victim is the
downwind community. What the Clinton administration and Carol Browner
tried to do was to create flexibility in the EPA so that the downwind
community did not have to pay to clean up the pollution in the upwind
community. In other words, to make sure that the upwind community
cleaned up its act so that it did not dump pollution on an innocent
victim community who might end up having to pay for it.
So the idea was not to diminish the cleanliness of the air, it was
not to exonerate anyone from their obligations
[[Page H10095]]
to clean their air. It was certainly not to allow the air to stay
dirty. It was all about requiring the upwind polluter to get their act
together, to clean up their act, and then to be able to count that
together with the work done by the downwind community to reach clean
air attainment. Now, that is fair.
Now, we have criticized the Clinton administration on this side many
times for its action. In this case they were right. The EPA was right.
The court, unfortunately, correctly, I think, said the EPA did not have
the authority to do the right thing here.
What we are trying to do in the conference is make sure EPA has the
authority to do the right thing and to make sure that the polluter does
pay, that the innocent community downwind does not have to sacrifice
because they are being dumped on by some upwind community.
Mr. Speaker, I urge this motion be defeated.
Mr. Speaker, let me make one last point. I respect the gentlewoman
from Texas (Ms. Eddie Bernice Johnson) so much. I hope she knows that.
We are in a conference right now with the Senate. We are trying to fix
this. This would be a terrible instruction. This would be a terrible
instruction to every community in America that suffers because someone
upwind of them is polluting their community. It would be a terrible
instruction.
What we want to do in the conference committee with the Senate, and I
hope we finish that bill soon, is bring Members back a chance to pass
an energy policy that does enforce the idea that the polluter should be
responsible to clean up their act first. We are going to try to bring
that back to Members.
This instruction hurts us, even though it is nonbinding, and I would
urge that we reject it.
Mr. Speaker, I rise in strong opposition to the Johnson motion and
urge my colleagues to vote against it.
I don't think any Member would disagree that the Clean Air Act has
been extremely beneficial to America's environment over the last three
decades. But as with any complex regulatory statute of its kind, there
are times when the letter of the law either leads to unintended
consequences or can give rise to conflicting interpretations.
This is precisely the situation that confronted the Clinton
administration nearly a decade ago. In 1994, under the leadership of
then-Administrator Carol Browner, the Environmental Protection Agency
adopted a regulatory interpretation of the Air Act that allowed for
some flexibility in applying ozone nonattainment dates. EPA issued
additional guidance several years later, under which, in limited
circumstances, the Agency would extend dates for downwind areas that
suffered from pollution transport. The EPA then applied this guidance
on a discretionary basis through approval of various state
implementation plans.
Unfortunately,the courts threw out EPA's interpretations of the Air
Act last year. So for the EPA's common-sense, flexible approach to
nonattainment is to prevail across the country, Congress must codify it
as part of the Clean Air Act.
As we debate this motion tonight, it is by no means clear when we
will be able to get an energy conference report to the House floor. And
that's largely because conferees are continuing to negotiate a number
of key provisions, including whether we should include the ``bump up''
codification.
The motion before us is non-binding, Mr. Speaker. But I would not
want for the House to be even symbolically constrained in its ability
to negotiate with the other body, particularly when it comes to doing
something like including a common-sense Clinton-era environmental
regulation.
I want to make clear to my colleagues that the Clinton-era policy on
bump up does not let downwind areas off the hook. In order to qualify:
(1) An area must be the victim of pollution transported from another
area that significantly contributes to nonattainment in the downwind
area; (2) EPA must approve a plan that complies with all requirements
of the Clean Air Act that are currently applicable to the area--as well
as includes any additional measures needed to reach attainment by the
date for the upwind area; and (3) the extension of any date must
provide for attainment of Clean Air Act standards ``as expeditiously as
practicable,'' but in no case later than the time in which upwind
controls are in place.
The codification measure is fair and balanced. It prevents an unjust
result--that a downwind area suffering from transported pollution is
penalized for pollution that it does not generate. Many areas have made
progress and are close to attaining--it makes no sense at this stage to
impose additional penalties that will not advance attainment. In some
cases, areas risk being classified as ``severe'' nonattainment even
though they violated the 1 hour standard just a few times over 3 years
and would otherwise be considered to be in ``marginal'' nonattainment.
At the end of the day, the codification of the Clinton bump up policy
may actually be the most pro-environment thing we can do because it
provides for the best possible course to reach attainment. The sooner
we have it in place--regardless of how it gets to the President's
desk--the better for our constituents living in these areas.
Again, Mr. Speaker, I urge opposition to the motion.
Mr. BARTON of Texas. Mr. Speaker, I yield to the gentlewoman from
Texas (Ms. Eddie Bernice Johnson).
Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, what I need to ask
is that at what point will these polluters be responsible for cleaning
up? If we stand here and change the goal post one time after another,
the time never comes.
The Clinton administration, which you love to refer to on this, gave
leeway, but it is time now to clean the air. People are dying from this
dirty air.
Mr. BARTON of Texas. Mr. Speaker, if I may reclaim my time to respond
briefly. This is not about changing the goal post at all. The same
standard is in effect. We are not changing the standard. We are simply
saying if they are trying to comply, and one of the reasons they are
not in technical compliance is because of an ozone transport issue
outside of their control area, they have the flexibility to ask for an
extension. And the EPA has the right to grant that extension. But if
the EPA does, it cannot grant an extension that is any longer than in
the noncompliant area that is causing the transport issue.
Mr. Speaker, I yield to the gentleman from Michigan (Mr. Upton).
Mr. UPTON. Mr. Speaker, I want to piggyback on to the comments of the
gentleman from Louisiana (Mr. Tauzin). I can remember when Carol
Browner, the then administrator of EPA, came and testified before the
subcommittee. I was one that supported the Clean Air Act as well as the
Clean Water Act. I can remember when we debated the Clean Air Act, the
delegation at that time included important language, and I am not a
lawyer but we thought it was sufficient, that gave the EPA the
administrative authority when downwind communities were impacted by
what came from the polluter itself.
My district, southwestern Michigan, I have air that comes from Gary,
Indiana, from Chicago, Illinois, and Milwaukee, Wisconsin, across Lake
Michigan. Some of my counties have reported that they could actually
remove all human activity in some of my counties, and we would still
not be in compliance with the new 8-hour standard because of what is
coming across the lake.
When Carol Browner came and heard that at the subcommittee, she
helped us with this language and the administrative relief that they
put into effect for other areas around the country. What the gentleman
from Texas (Mr. Barton) is doing, and the gentleman from Louisiana (Mr.
Tauzin) as part of the conference, is to revert back to what the
Clinton administration said then: We still want to help the polluters
clean up their air, but we also recognize that the victims. For me, my
area of southwest Michigan, can do absolutely nothing about it. In
fact, they can have some relief if these new penalties are assessed,
collecting millions of dollars which, at the end of the day, will not
provide one iota of cleaner air. Because, again, we could remove
everything, every road, every lawn mower, every small business, every
large business, at the end of the day there is nothing we can do
without some type of relief.
And that is why it is important, I think, that we defeat the motion
to instruct of the gentlewoman from Texas (Ms. Eddie Bernice Johnson)
because we are left with no choice. And that is why the Clinton
administration agreed with us when they came and testified before our
subcommittee.
Mr. BARTON of Texas. Mr. Speaker, I will reserve the balance of my
time.
Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I yield 3\1/2\
minutes to the gentlewoman from California (Mrs. Capps.)
Mrs. CAPPS. Mr. Speaker, I thank my colleague and fellow nurse for
[[Page H10096]]
yielding and also for her motion to instruct conferees on the Energy
Policy Act.
Mr. Speaker, I rise in strong support of this motion. It is a real
shame that at the 11th hour the Republican conferees have added a new
provision to this energy bill which weakens the Clean Air Act and harms
public health. This new provision will allow polluted cities to avoid
having to clean up their dirty air.
Right now cities can get extended deadlines to meet their
requirements under the Clean Air Act, but in exchange for the time
extension, within the Clean Air Act, cities with dirty air have to meet
specific goals and specific timetables. This is EPA's bump-up policy
that is supposed to ensure that dirty air is cleaned up. And the policy
is designed to work with cities, to make sure that this can happen in a
timely fashion. But under the new energy provisions being proposed,
cities that have not met their clean air requirements will just be
given a pass. That means that cities with dirty air will not have to
institute stronger pollution controls to clean up their act for a much
longer time.
People living in these cities and people living downwind will suffer
longer from dirty air and its damaging health effects. We cannot afford
this, not in our health care and not in our economy.
As a public health nurse, I am so concerned with this very provision
and its impact on the state of our air quality. The argument is that it
is hard for these polluted areas to clean up due to dirty air blown in
from elsewhere. That case has been made. But in many of these areas it
is been demonstrated that these areas that would be exempted,
transported pollution is only a small part of the problem.
Now, what about continued local clean-up efforts which are
demonstrated to be necessary? And, in addition, this new provision
provides a special break for certain areas of Texas and Louisiana. That
is blatantly unfair to all the cities and their businesses that have
worked so hard to meet pollution control deadlines, to provide healthy
air for their citizens.
This added change also harms all the areas downwind of those that get
the extension as more air pollution will continue to blow downwind for
so many years longer.
The truth is this last minute change was never approved by either the
House or the Senate. In fact, this provision, and I was at the hearing
that we held in July, but it has never been debated upon. Alternatives
have never been able to be proposed in a committee setting.
This change weakens the Clean Air Act and overturns three appellate
court rulings upholding current law. This is an end run around the
courts which have repeatedly held that the EPA does not have the
authority to extend air quality deadlines without following the Clean
Air Act requirements.
Mr. Speaker, EPA reports that 133 million Americans in our country
live where air is unhealthy to breathe because of ozone pollution. The
provisions in this bill are denying these Americans their right to
breathe clean air.
The provision in this bill is going to be denying these Americans
their right to breathe clean air. The provision in the energy bill is a
bad idea. The end result will be a delay in cleanup, continued
unhealthy air, and more asthma attacks, respiratory illnesses and other
health problems. It is going to affect health and productivity of
American companies and American workers. Our children and our families
have waited too long for clean air.
So I urge my colleagues to support this motion and oppose any energy
bill that contains this shameful provision.
Mr. BARTON of Texas. Mr. Speaker, could I inquire of the time on each
side right now?
The SPEAKER pro tempore (Mr. Kline). The gentleman from Texas (Mr.
Barton) has 16 minutes remaining. The gentlewoman from Texas (Ms. Eddie
Bernice Johnson) has 20\1/2\ minutes.
Mr. BARTON of Texas. Mr. Speaker, I would like to yield 2\1/2\
minutes to the gentleman from Houston, Texas, (Mr. Green), a member of
the committee and the subcommittee.
Mr. GREEN of Texas. Mr. Speaker, I thank the gentleman from Texas
(Mr. Barton), my colleague and the chairman of our subcommittee on the
Committee on Energy and Commerce.
{time} 1930
It is with reluctance I rise in opposition to the motion to instruct
offered by my colleague and longtime and respected friend, the
gentlewoman from Texas (Ms. Eddie Bernice Johnson). We have served
together now for 30 years, and every once in a while we do find
ourselves on opposite sides. Since I represent Houston, and I will deny
under oath if necessary that we caused Dallas' pollution problems, but
be that as it may, I understand the gentlewoman's passion to improve
the air quality for her constituents. That is impressive and she is
doing great work to raise the public profile of a difficult issue. But
I find myself in a difficult situation myself today. A bipartisan group
of my colleagues from north Texas and east Texas are blaming my area of
Houston for increasing smog levels in their area.
First, let me say that the Houston area is doing everything in our
power to reach compliance with the Clean Air Act. Our deadline is 2007.
We have a tremendous amount of manufacturing facilities and jobs in our
area. And reengineering these facilities without causing a regional
recession is a challenge, but we are making progress.
The EPA has given areas with imported air emissions extra time to
meet the deadlines, but the courts have ruled that they do not have
that authority. A provision is in the draft conference report, which is
what the gentleman from Texas (Mr. Barton) talks about that allows the
EPA the authority to extend the deadline for two years with areas with
imported emissions.
Now, in the Houston area we do have some problem in imported
emissions from if they have fires in Mexico, we receive it. But Houston
would not come under this. But if the EPA decides that Houston's air
quality significantly impacts Beaumont, for example, to the east and
Dallas' air quality, then maybe they should also have the same deadline
in Houston in 2007 instead of 2005. That is basically all this
provision in the conference committee would do. We are not reopening
the Clean Air Act. It is just allowing Dallas or Beaumont to ask for
that extension.
I understand there are similar situations in areas all over the
country. And I also understand the concern of my colleague, the
gentlewoman from Texas (Ms. Eddie Bernice Johnson), that the deadline
be moved back, because often we relax if it is not pressing.
Mr. Speaker, I strongly believe Dallas and Beaumont should not use an
extension as an excuse to avoid local control and delay cleaner air for
their citizens. But I do believe the EPA should be able to grant them
an extension and give them as much time as my own area with the Clean
Air Act.
Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I yield 4 minutes to
the gentleman from Maine (Mr. Allen).
Mr. ALLEN. Mr. Speaker, I thank the gentlewoman for yielding me time
and for her leadership on this motion to instruct.
Mr. Speaker, when it comes to air quality, Maine is America's
tailpipe. We are downwind of industrialized areas to our south and
west. Southern Maine endures unhealthy air days during most summers.
According to the EPA's analysis, 98 percent of the emissions leading
to unhealthy air days in Maine originate outside of our borders. And so
as a result of our experience, I sympathize with those areas which also
have pollution coming in, blowing into their areas from other parts of
the country; but I do not believe this provision is the right answer.
I rise today to oppose addressing the transport problem by rewriting
the Clean Air Act within the energy bill conference. The Clean Air Act
should not, in my opinion, be amended in secret meetings of the energy
bill conference committee. If we look back at the secret meetings of
the Cheney task force, they were linked to the administration's new
source review rule changes, the clearest weakening of the Clean Air Act
ever approved, and we do not need to weaken the Clean Air Act and
threaten the health of our people.
Portland, Maine, could not have attained healthy air by its 1996
deadline if the whole city had packed its bags and moved to Quebec. We
have suffered
[[Page H10097]]
from such a severe transport problem, more severe in percentage terms
than Dallas, Texas, that local efforts could not possibly have brought
the city into attainment.
Like my colleagues who have added this provision to the energy bill,
Maine's former Governor complained that the Clean Air Act was flawed
back in 1996, some State policymakers even advocating changing the act
to alleviate our burden. The same arguments are being made here today,
but I do not buy it. No matter how many times flexibility is mentioned
or the Clinton administration proposals, the real risk here is that we
will weaken the Clean Air Act in a fundamental way.
The transport problem is real, but the Clean Air Act gives States the
tools to go after upwind sources that risk the health of our citizens.
In the mid-1990s, for example, Maine's policymakers used the Clean Air
Act by filing a section 126 petition against upwind sources, and other
northeastern States did the same. In short, we pushed for a more
comprehensive solution to the transport problem; and as a direct result
of the section 126 petitions, EPA initiated the NOX SIP Call, which
when this administration finally implemented it in 2004, will help us
to attain healthy air.
The Committee on Energy and Commerce can take appropriate action to
address the needs of certain areas, such as Atlanta, without
endangering public health. If this provision were reasonable and
environmentally benign, the authors, I believe, would show us the text,
mark it up in regular order, and place it on the suspension calendar.
As I say, I am from an area that suffers from transport; but I do not
believe this provision, whatever its exact language, will help the
people of my State. We need to stop this effort to help polluters at
the expense of children with asthma and grandparents with emphysema. So
I want to encourage Members to support the motion to instruct.
But I would like to yield the balance of my time to the gentleman
from Texas (Mr. Barton) if he can answer a simple question.
Would the gentleman agree to provide the text of this provision? We
are in an odd position here, debating a provision that has been
reported, but that we do not have a text of. Would the gentleman agree
to provide the provision?
Mr. BARTON of Texas. Mr. Speaker, will the gentleman yield?
Mr. ALLEN. I yield to the gentleman from Texas.
Mr. BARTON of Texas. If we had a finalized version of the text, I
would certainly share it with the gentleman. We do not yet have a
finalized version. I can tell the gentleman the substance of it and
would be happy to do that; but I myself do not have a hard copy of it
because we have not finalized the negotiations with the other body.
Mr. ALLEN. Mr. Speaker, I would be happy to settle for the substance.
Mr. BARTON of Texas. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I would like to try to answer my good friend's question.
Before I do that, I want to put into the Record the witness list for
the subcommittee hearing on July 22, 2003, that I believe the gentleman
from Maine (Mr. Allen) attended, if I am not mistaken. My recollection
is that he was there.
We had 10 witnesses headed by the Honorable Jeffrey Holmstead, who is
the assistant administrator for the air and radiation office of the
Environmental Protection Agency.
We had nine witnesses that were State and local witnesses. We had a
fair panel. Of the nine State and local witnesses, my recollection is
that five or six supported this proposal and that three did not. There
may be one of the six that I count as a supporter that was kind of 50/
50 on it.
The material referred to is as follows:
Panel I
The Honorable Jeffrey Holmstead, Assistant Administrator
for Air and Radiation, Environmental Protection Agency, 6101A
USEPA Headquarters, Ariel Rios Building, 1200 Pennsylvania
Avenue, NW., Washington, DC 20460.
Panel II
The Honorable Bobby Simpson, Mayor-President, Baton Rouge/
Parish of East Baton Rouge, 222 St. Louis Street, 3rd Floor,
Baton Rouge, LA 7802.
The Honorable Carl K. Thibodeaux, County Judge, Orange
County Courthouse, 123 South 6th Street, Orange, TX 77630.
The Honorable Carl R. Griffith Jr., County Judge, Jefferson
County Courthouse, 1149 Pearl Street, Beaumont, TX 77704.
The Honorable R.B. ``Ralph'' Marquez, Commissioner, Texas
Natural Resource Conservation Commission, P.O. Box 13087,
Mail Code 100, Austin, TX 78711.
Dr. Ramon Alvarez, Scientist, Environmental Defense, 44
East Avenue, Suite 304, Austin, TX 78701.
Mr. David Farren, Attorney, Southern Environmental Law
Center, 200 West Franklin Street, Suite 330, Chapel Hill, NC
27516.
Mr. Ronald Methier, Chief, Georgia Department of Natural
Resources, Environmental Protection Division, Air Protection
Branch, 4244 International Parkway, Suite 120, Atlanta, GA
30354.
Mr. David Baron, Staff Attorney, Earthjustice, 1625
Massachusetts Avenue, NW., Washington, DC 20036.
Mr. Samuel Wolfe, Assistant Commissioner for Environmental,
Regulation, New Jersey Department of Environmental
Protection, P.O. Box 423, Trenton, NJ 08625-0423.
Mr. BARTON of Texas. What the pending proposal with the other body
would do is simply and very narrowly in the States that are part of the
agreement with the EPA on NOx, and there are 17 States, most
of them east of the Mississippi, if those States have a State
implementation plan approved or in the process of being approved and
they can show that one of the reasons they may not be in compliance is
because of ozone transport, they can ask for an extension. The EPA has
the discretion to grant the extension; but if the EPA does grant the
extension, it can only grant it forward to the compliant date where the
ozone transport is originating from, if that makes sense. It is purely
discretionary on asking for the extension. It is purely discretionary
on granting the extension.
The extension can only be granted for ozone transport. It is an
attempt to codify the Clinton administration's proposal that was put in
the Federal Register in 1998.
Mr. ALLEN. Mr. Speaker, will the gentleman yield?
Mr. BARTON of Texas. I yield to the gentleman from Maine.
Mr. ALLEN. My understanding of the current law is that if extensions
are granted for any purpose, there is a requirement that stiffer
pollution control requirements be implemented in the area. Does the
gentleman's provision do away with that requirement for stiffer
pollution requirements?
Mr. BARTON of Texas. Let me call a time out if that is possible.
It does not require additional implementation control measures, but
it would require that they could file an addendum to the SIP that would
do that.
Mr. ALLEN. I thank the gentleman.
Mr. BARTON of Texas. Reclaiming my time, Mr. Speaker, I want to
comment on what might happen if a region is not granted an extension.
The courts have ruled in these court cases that if the EPA is not
allowed to give some discretion in terms of meeting the timeline and if
that region does not look like it is going to be in compliance, it is
automatically bumped up to the next highest attainment, nonattainment
category.
There are five nonattainment categories in the Clean Air Act. The
least nonattainment is called marginal. Their design parameter is
between 121 parts per billion for ozone and 138 parts per billion. You
go to moderate which is 138 parts per billion to 160. You go to serious
.160 to .180. And you go to severe which is 180 parts per billion to
190 parts per billion, and anything above that is extreme. And if you
do not have the flexibility to give an extension, and if the region
cannot show that it will be in compliance by that specific deadline,
EPA has to bump them up in the next higher nonattainment area.
And we might ask ourselves, well, so what? So we are bumped up from
serious to severe, from moderate to serious. No big deal. Well, it
actually is a big deal because as we go into the more severe
nonattainment criteria, the things that have to be done, there is no
discretion on that. For example, if you apply for a permit to perhaps
build a new factory to provide new jobs, you have to show that there is
a two to one offset.
In other words, you have to shut down two tons of pollution for each
new ton that the new factory would provide. You almost bring to a halt
any highway funding in the area. And in the DFW area that the
gentlewoman and I share representation with, those
[[Page H10098]]
highway funds on an annual basis or order of magnitude are around $600
million just in Dallas and Tarrant County.
Any new source that is over 25 tons per year has to get a special
permit, and 25 tons per year is not a large amount of emissions. And it
is possible that the Federal Government can come in and just take over
the entire State implementation.
Now, there are some that may think that those are all well and good;
but most of this body I would postulate would say, would it not be
better to give the region some flexibility to ask for an extension and
would it not be better to give the EPA the authority if they felt it
was in order to give the extension. That is the question. And again, we
are not changing the standards; we are not changing the 125 part per
billion standard for ozone. We are not maintaining that at all. We are
not changing the criteria for being classified from marginal to
extreme. We are not changing that at all. We are not changing the
general attainment dates that go back in the statute to 1990. We are
simply saying flexibility and discretion are a good thing, not a bad
thing.
Mr. Speaker, I reserve the balance of my time.
Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I have no further
requests for time, and I believe I have the right to close.
The SPEAKER pro tempore (Mr. Kline). The gentlewoman from Texas (Ms.
Eddie Bernice Johnson) has the right to close.
{time} 1945
Mr. BARTON of Texas. Mr. Speaker, if she is about to close, I have
some more comments, and she does have the right to close. Would she
allow me to speak and then she could close the debate?
The SPEAKER pro tempore (Mr. Kline). The gentleman from Texas (Mr.
Barton) is recognized.
Mr. BARTON of Texas. Mr. Speaker, how much time do I have left?
The SPEAKER pro tempore. The gentleman from Texas has 8\1/2\ minutes
remaining.
Mr. BARTON of Texas. Mr. Speaker, I yield myself such time as I may
consume.
I do not want to belabor the debate. Let me just in summary, before
the gentlewoman closes, point out that while the gentlewoman is from
the Dallas-Fort Worth area, and I am also, this is not a local Dallas-
Fort Worth issue. These court cases were brought in three different
circuit courts, one of which is the District of Columbia here in
Washington, D.C., the 5th circuit and the 7th circuit. So this is a
national issue.
Regions that are affected immediately by these court cases do include
the Beaumont-Port Arthur area, Dallas-Fort Worth area. So there are two
areas in Texas but we also have St. Louis, Missouri; Atlanta, Georgia;
Washington, D.C.; greater Connecticut; and Baton Rouge, Louisiana.
Those are the cases that we know of, the State implementation plans
that were pending that have been stayed by these are affected by these
court rulings. So this is not just a Texas issue or just a Dallas-Fort
Worth issue. This is a national issue.
The second thing that I would point out is that we are not affecting
the standard, the national standard of 120 parts per billion, but let
me say on that, when the gentlewoman from Dallas indicates that she has
constituents that are affected by ozone and, as she called it, by the
dirty area, so do I.
I am slightly asthmatic. My son is, I would say, moderately to
severely asthmatic. I have done a lot on the floor of this body to try
to help asthmatics. I am the cofounder, along with Senator Kennedy in
the other body and the gentlewoman from New York (Mrs. Lowey), of
Asthma Awareness Day. Back before it was politically correct to be
talking about asthma, in some earlier Congresses, I was one of the
handful of sponsors of the Asthma Act back in the 105th Congress. I was
one of only three sponsors of H.R. 4654. In the 106th Congress, I was
one of only four sponsors of H.R. 1965. I am still a leader of the
Asthma Awareness Day that we have had every year in the Congress for
the last 8 years I think.
So we are not trying to say it is not a problem, but there are some
people in our society, when they set these standards for ozone, that we
could take ozone to background levels, five parts per billion, six
parts per billion like we have in Atlanta, Georgia, and there would
still be some asthmatics that were negatively affected.
The other pollutants that are regulated under the Clean Air Act, in
every case there was some sort of a bright line test, and again, it is
not the different categories. It is yes or no. For lead, yes or no. For
SO2, yes or no. For NOx, yes or no. But for ozone, it is not a yes or
no, and there is wide scientific debate about where to set the
standard.
Having said that, we could set the standard at a level that only the
Supreme Being of the universe could meet, and we would still have some
people that would be negatively affected. So when we get into the
debate about parts per billion and number of days they are out of
compliance, 3 days in a 3-year period is okay, but 4 days in a 3-year
period is not if they exceed it by one part per billion, then I think
discretion is advisable, and I think flexibility is advisable. And I
think the pending House position with the other body on the energy
conference report is a very defensible, not only defensible, it is a
very useful provision, and I would hope, if the gentlewoman insists on
a record vote, that we would vote against her motion to instruct, not
because it is not well-intentioned, not because she is not well-
meaning, but because it actually would, in many ways, I think, hurt the
effort to clean the air because of the arbitrariness of the way the
courts have ruled under the current Clean Air Act.
Mr. Speaker, I yield back the balance of my time.
Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I yield myself the
balance of my time.
There are lots of areas in the country that have already implemented
the controls that the gentleman from Texas (Mr. Barton) speaks about
and had worse transport problems and are not seeking extensions. It is
a matter of whether these companies want to do it and have the
encouragement to come into compliance rather than to help to stay out
of compliance.
I would also like to note that the gentleman from Michigan (Mr.
Upton) was here speaking, and I do not know about his application for
an extension, but all the areas in Michigan have attained the 1-hour
standard. So I do not know why the EPA policy would even apply to
Michigan.
The only transport occurring in my area is from the gentleman from
Texas' (Mr. Barton) district to mine. It is not from Houston to Dallas,
and in today's article that was well-researched in the Dallas Morning
News, it states that the region missed Federal deadlines in 1996 and
1999 to clean up its air. The last missed date made the region, now
classified as a serious ozone violator, eligible to move to the next
worse category, as severe. That would impose the new deadline set by a
Federal law for 2005 and new orders for pollution cuts.
Mr. BARTON of Texas. Mr. Speaker, will the gentlewoman yield?
Ms. EDDIE BERNICE JOHNSON of Texas. I yield to the gentleman from
Texas.
Mr. BARTON of Texas. Mr. Speaker, I know she has the right to close,
but she made a characterization about my district, and at the
appropriate time, I would like to respond to that. I do not mean to
interrupt her, but if she would yield to me some time.
Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I yield 30 seconds
to the gentleman from Texas (Mr. Barton).
Mr. BARTON of Texas. Mr. Speaker, I will put into the Record data by
the Texas Environmental Air Quality Commission that shows the
monitoring in Ellis County has not exceeded one time the standard, not
one time. Now, there are monitors in Arlington, Texas, that have, and
that is also in my district, but if a reference is to Ellis County, the
data shows that there have not been any exceedences. I do not know
which part of my district she was referring to, but if it is Ellis
County, we are okay in Ellis County. If it is part of Arlington that I
represent, then we have had an exceedence.
The data is for ozone exceedences in Dallas/Fort Worth area in 2002
and 2003 (through 10/28/2003).
Measured values for Midlothian Tower C94/C158/C160 show 91 ppb on 15
May 2002, 86 ppb on 22 June 2002, 90 ppb on 23 June
[[Page H10099]]
2002, 85 ppb on 24 June 2002, 87 ppb on 8 July 2002, 88 ppb on 7 August
2002, 87 ppb on 8 August 2002, 99 ppb on 9 August 2002, 94 ppb on 11
September 2002, 86 ppb on 13 September 2002, 89 ppb on 28 May 2003, 86
ppb on 9 June 2003, and 89 ppb on 6 August 2003.
Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I yield myself such
time as I may consume.
(Ms. EDDIE BERNICE JOHNSON of Texas asked and was given permission to
revise and extend her remarks, and include extraneous material.)
Ms. EDDIE BERNICE JOHNSON of Texas. Wherever we are dirtying this
air, it is dangerous to the lungs, and it is dangerous to the health.
According to the Environmental Protection Agency, 127 million
Americans breathe air that violates Federal standards for smog and soot
pollutions. EPA's own consultants found that each year almost 370
residents of the Dallas-Fort Worth area died just because of pollution
from the oldest and dirtiest unregulated power plants in the country,
and 10,500 asthma attacks are triggered.
During the past several years, EPA gave several metropolitan areas a
free pass, extending air deadlines for dirty areas without bumping them
up to the higher pollution categories that would require more
protective standards. Four separate Federal appellate courts all ruled
that EPA's extension policy violated the language and purpose of the
Clean Air Act. Appropriately, that led the agency to abandon the
policy.
With so many Americans breathing in dirty air, it should be obvious
that air quality standards are already not being enforced enough. Why
would we make them weaker? But rather than accepting the judgment of
the EPA and the courts, the gentleman from Texas (Mr. Barton) and his
allies are seeking to amend the Clean Air Act. His changes would turn
the clock back, extend the air time frames once again, without raising
the bar for air quality. What this means in real terms for real people
is simple: Dirtier air for longer.
In their desire to pass any comprehensive energy bill, some of my
colleagues may be willing to overlook the massive damage this bill
would do to our existing clean air policies. Including the Barton dirty
air rider, which I do not even know what it says because he will not
let us see it, but it means ignoring overwhelming scientific evidence
on the serious health effects of ozone pollution. It will mean that
pollution in these areas will go unchecked for longer and longer in the
future.
Asthma attacks, respiratory problems and pulmonary disease will go
up, while the amount of time children can spend playing outside will go
down. Developing lungs process 50 percent more air, pound for pound,
than those of adults.
Children suffer most from the current air quality shortfalls. Letting
the situation worsen for years and even decades does nothing for a
child unable to go outside today.
It is true that we must secure our energy future, and this is why a
comprehensive energy bill is attempting to move forward, but we must
not roll back critical safeguards. We must not pass a bill with great
shortfalls simply because we need to pass a bill. We must instead work
toward a fair bill that protects us all and does not endanger ourselves
and our children.
This is not an attack upon my colleague and nor is it Democrats
versus Republicans. We see Democrats sitting over here that are for
this, too. He is for dirty air, but while we agree that emissions from
vehicles are significant contributors to ozone formation in north
Texas, we also want to highlight the fact that the volume of the
emissions coming from sources in Ellis County equals that of 2.5
million vehicles annually. These emission figures do not account for
the two power plants that have sited their plants in Ellis County. Many
of them have moved from Dallas County to Ellis County to avoid
compliance with better emission controls because they knew they would
find the gentleman from Texas (Mr. Barton) there to protect them, which
is not a part of this quote, with better pollution controls nor do
these emission figures account for the three permit amendments that are
pending at the Texas Commission of Environmental Quality to increase
emissions.
Are we going to forget about the people and the health of the people
altogether and not care what happens to the people's lungs, including
those of us who are here, or are we going to say to the companies, get
serious, comply with the standards?
Mr. Speaker, I also have testimony from that hearing from four
witnesses in July, as well as other material that I have referred to,
to place in the Record at this point.
[From the Dallas Morning News, Oct. 28, 2003]
Houston Link to D-FW Smog Doubted
(By Randy Lee Loftis)
Internal reviews at the Environmental Protection Agency
found little or no evidence to support Texas' contention that
Houston's smog was harming Dallas-Fort Worth's attainment of
clean-air goals, documents and interviews show.
Nonetheless, EPA officials publicly used much different
language--asserting that Houston's smog ``jeopardized''
Dallas' attainment--and proposed giving urban North Texas two
more years to clean up its smog than federal law allowed. The
move postponed a tougher smog crackdown.
Current and former EPA officials this week defended their
decisions and said there was no attempt to alter scientific
findings to justify their January 2001 proposal to extend
North Texas' smog deadline.
``I don't recollect anybody trying to hide a shell game on
Dallas-Forth Worth,'' said Tom Diggs, the EPA's chief air
planner for Texas. He said the agency's actions were in line
with national policy.
But a scientist at a major environmental group called the
discrepancy between the EPA's internal reviews and its public
statements ``damning'' evidence of collusion to avoid
statutory deadlines, at a cost to public health.
``It is shameful that the EPA was more worried about
appearing inflexible than upholding the law,'' said Dr. Ramon
Alvarez of Environmental Defense's Texas office.
time to clean up
North Urban Texas is under pressure to resolve one of the
nation's most stubborn smog problems. Emissions from vehicles
and industries combine to create hazy skies and health risks,
especially for children, the elderly and people with lung
ailments.
The region missed federal deadlines in 1996 and 1999 to
clean up its air. The last missed date made the region, now
classified as a serious ozone violator, eligible to move to
the next-worse category, severe. That would have imposed a
new deadline, set by federal law for 2005, and new orders for
pollution cuts.
When the EPA proposed postponing the deadline to 2007, it
also put off the area's designation as severe. That decision
two years ago has surged back into the headlines in recent
days as part of a bitter fight in Congress.
The agency gave such extensions to several metropolitan
areas, in each case saying scientific evidence supported
them. Federal courts have struck down the extensions as
illegal.
An effort by U.S. Rep. Joe Barton, R-Enis, to legalize them
has helped to stall a major energy bill.
Some Senate Republican leaders and Democrats in both
chambers oppose Mr. Barton's attempt. ``We did some research
on the issue,'' Mr. Barton said Tuesday in Washington. ``We
had a hearing in the committee. And all but some of the more
radical environmentalists said we ought to give the EPA this
discretion.''
The EPA's policy on ``transport'' of smog, or ozone,
between cities was supposedly meant to keep a downwind area
from paying a price for an upwind area's pollution.
Starting with the Clinton administration, the EPA offered
to extend deadlines for any urban area that could demonstrate
that another area's smog was significantly affecting its
clean-air attainment.
Atlanta, Washington, D.C., St. Louis and Beaumont-Port
Arthur were among the takers.
So was Dallas-Fort Worth. The Texas Natural Resource
Conservation Commission, now the Texas Commission on
Environmental Quality, submitted technical findings in
September 1999 that it said showed Houston's effect on
Dallas-Fort Worth.
The EPA's Dallas office formally accepted the state's
evidence Jan. 4, 2001. The EPA cited the evidence in
proposing to postpone Dallas-Fort Worth's deadline to 2007
from 2005, the date set by law.
``We are proposing that this transported pollution affects
DFW's ability to attain by the current attainment date,'' the
EPA announced in the Federal Register.
``Thus, the DFW and HGA [Houston-Galveston] areas are
inextricably linked,'' the agency wrote. ``Without controls
in the HGA, the DFW area's ability to attain is
jeopardized.''
Environmentalists questioned that assertion at the time,
saying the EPA was using transport as an excuse to give
states more time for cleanups. The federal court rulings kept
the EPA from finalizing the North Texas extension. Future
smog plans are being negotiated.
Mr. Diggs, the EPA's chief regional planner, said Tuesday
that the state's submittal met the EPA national policy for
such claims. He acknowledged, however, that the EPA set the
scientific hurdle so low that it was easy for states to get
the deadlines extended.
``Whether [making the extensions easy] was a good decision
or not, it was out there for every state,'' he said.
[[Page H10100]]
``significant'' impact
Elsewhere in that Federal Register document, Mr. Diggs
noted, the EPA said Houston's impact on North Texas was small
and limited to some days, but met the agency's definition of
``significant.'' However, EPA technical reviews in 1999 had
found that Texas' scientific case was ``weak'' and that
Houston actually had ``minimal, if any'' effect on Dallas-
Fort Worth's attainment, documents and interviews show.
One former EPA staff expert who reviewed the evidence
concluded then: ``Thus, there is not much of an impact of HG
[Houston-Galveston] on the DFW [area] that would interfere
with DFW's ability to achieve attainment.''
Dick Karp said in an interview that he was given no new
information later that would change that conclusion.
too rigorous review
The problem, he said, was that supervisors told him his
review was ``more rigorous'' than the agency wanted.
``There was a lot of passing back and forth,'' Mr. Karp
said. ``I know in the beginning I was probably a bit more of
a stickler for them being able to prove it--show me that
there's a real impact from Houston.
``And I kind of got taken aside and told, `Well, that's not
exactly what this policy is about.' ''
EPA executives wanted to grant the extensions, but making
the states prove their claims would go against that goal, Mr.
Karp said.
So he was told that the burden was on the EPA to disprove
the states' claims, not on the states to prove them, he said.
``I wasn't real comfortable with that, but I don't get to
make the rules,'' said Mr. Karp, who has left the EPA.
Former EPA regional administrator Gregg Cooke, who made the
decision to delay Dallas-Fort Worth's deadline, said he was
never told that there were questions about the state's
evidence.
``The staff document that was sent to me [said that] we
think we should give the extension, ``he said. ``And I
approved that based upon whatever was given to me at the
time. . . . I thought the analysis from staff was that the
technical argument was well-taken.''
Asked whether knowing of lower-level staff concerns about
the state's case might have changed his decision, Mr. Cooke
said, ``It might have been germane.''
Mr. Cooke, who has since left the EPA, is an attorney
representing the governments of Dallas-Fort Worth-area
counties on clean-air planning.
Mr. Diggs said the EPA's final technical documents,
published along with the proposal to extend North Texas'
deadline, laid out the agency's policy requirements and
showed that Texas had met them. The documents did not claim,
he said, that Houston's smog was keeping Dallas-Fort Worth
out of clean-air attainment. That was clear in an Oct. 22,
1999, letter to Texas officials, he said.
``We would never say that Houston is the reason for Dallas-
Fort Worth's nonattainment,'' Mr. Diggs said, ``Houston
coming into attainment does not solve Dallas-Fort Worth.''
Even the Texas officials who assembled the state's evidence
knew that they couldn't prove that Houston was a big factor
for North Texas, said Brian Foster, an air planner with the
Texas Commission on Environmental Quality.
`minimal impact'
``We did show that there was a minimal impact. We admit
that it wasn't the greatest amount there was,'' Mr. Foster
said.
But the state agency, hoping that new federal and state
measures would help ease Texas smog, readily took advantage
of the delays that the transport policy offered, he said.
``We felt that we needed more time,'' Mr. Foster said. The
key to getting it was EPA's low standard for showing
``significant'' impacts. ``Once again, it goes back to the
EPA policy,'' Mr. Foster said.
Dr. Alvarez, the Environmental Defense scientist, said the
EPA oversold Houston's impact to the public to justify the
extension. Added together, he said, such seemingly small
steps backward help explain why decades of efforts have
failed to clean up North Texas' air.
``It seems like sophomoric high school decision-making,''
he said. ``Unfortunately, the stakes are much higher: It is
the asthmatic children in the metroplex that pay the price of
yet another delay in the fight for clean air.''
U.S. Senate,
Washington, DC, October 27, 2003.
Hon. Pete Domenici,
Chairman, Senate Committee on Energy and Natural Resources,
Dirksen Senate Office Building, Washington, DC.
Dear Mr. Chairman: The Clean Air Act has reduced pollution
from many different sources, but there is still much more
work to be done. Nearly 150 million Americans are living in
areas that currently do not meet the nation's air quality
standards. As you know, in the Senate, the Environment and
Public Works Committee has the responsibility for reviewing
and revising that Act in a manner that will help us achieve
the unanimous goal of improved air quality for all our
citizens.
We understand that members of the energy bill Conference
Committee from the House of Representatives have proposed an
amendment to Title I of the Clean Air Act. That amendment, to
codify a policy with respect to ozone nonattainment
designations, is not relevant to energy issues, has been
overturned by the courts, and has not been the subject of
consultation with or legislative action by the Environment
and Public Works Committee or the Senate. Therefore, we
believe it is inappropriate to include such provisions as
part of the energy bill.
The effect of the proposed amendment would be to disregard
the compelling scientific evidence on the serious health
effects of ozone pollution and delay necessary emissions
reductions. This will increase pollution in those areas and
in downwind areas, increasing asthma attacks, the number of
hospital admissions for respiratory and pulmonary problems,
and reducing the number of days that children can play
outside safely. This would be contrary to the system
established by the Clean Air Act and unsound policy.
In addition, the precedent of bypassing the Committee on
Environment and Public Works would be unfortunate. Disregard
for the views of the committee of jurisdiction would be
compounded by incorporating a new matter such as the proposed
amendment, which is not in either Houses' version of H.R. 6,
into the conference report. Inclusion of the amendment in the
conference report on H.R. 6 will delay Senate consideration
and any final action on H.R. 6.
Finally, we clearly understand that this proposal is not
emanating from the Senate conferees and urge you to oppose
it. Energy Committee majority staff has indicated publicly
that you do not think that the energy bill is the appropriate
vehicle for amending the Clean Air Act.
We hope that you will maintain that position with respect
to this proposed amendment and any such proposals outside the
scope of what has already passed the Senate when the
conferees meet again.
Sincerely,
Jim Jeffords, Jack Reed, Patrick Leahy, Barbara Boxer,
Joe Biden, Ron Wyden, Dianne Feinstein, John F. Kerry,
Hillary Rodham Clinton.
____
Testimony by Samuel A. Wolfe, Assistant Commissioner for Environmental
Regulation, New Jersey Department of Environmental Protection, on
USEPA's Bump-up Policy Under Title I of the Clean Air Act Before the
House Energy and Commerce Committee Subcommittee on Energy and Air
Quality, July 22, 2003
Good morning, Mr. Chairman and members of the Subcommittee.
My name is Samuel Wolfe. I am Assistant Commissioner for
Environmental Regulation for the New Jersey Department of
Environmental Protection. Thank you for the opportunity to
testify before you today regarding the Environmental
Protection Agency's bump-up policy under Title I of the Clean
Air Act.
Even though the EPA created the bump-up policy in an effort
to help areas affected by ozone transport, New Jersey cannot
support revising the Clean Air Act to accommodate the EPA
policy. The policy does nothing to address transport. It
simply rewards an area's failure to attain air quality
standards by extending deadlines beyond the two years that
the law allowed without requiring any additional action to
address air pollution.
The 1990 Clear Air Act Amendments created five classes of
ozone nonattainment areas to reflect the severity of each
area's ozone problem, ranging from marginal to extreme. The
classification system followed the principle that a more
severe problem would require more work and more time to
correct. For that reason, the law requires areas with more
severe problems to take more actions to reduce air pollution,
and allows those areas more time to attain the Federal air
quality standard.
Under the law, areas that fail to attain the standard by
the statutory deadline could get the deadline extended for up
to two years. If they still failed after that extension, they
would be ``bumped up'' to a higher classification, giving
them more time but also requiring that they do more to
control air pollution.
The EPA's 1998 ``bump-up'' policy extended the attainment
deadlines for moderate or serious nonattainment areas when
pollution transported from outside the area interfered with
its ability to demonstrate attainment by the deadline. More
than many States, New Jersey appreciates the need to address
transport. Over a third of the air pollution in our State is
transported from outside our borders. However, we cannot
support codifying into law a policy that simply provides
extensions and does nothing to address transport.
Granting these cost-free extensions would be easier to
justify if a bump-up forced an area to impose costly or
onerous requirements to control air pollution. This is not
the case. From the beginning, the EPA classified most of New
Jersey as severe nonattainment areas. As a result, New Jersey
has had to implement almost all of the ozone pollution
control measures required under Title I of the Clean Air Act.
We required our major sources of ozone precursors to install
reasonably available control technology. We required vapor
recovery at gas stations. We run an enhanced program for
motor vehicle inspection and maintenance, which is much
easier to create now than it was when we started.
The truth is that these types of Title I measures are now
the ``low hanging fruit'' of
[[Page H10101]]
emission reductions. Areas that fail to meet their attainment
deadlines can put these measures in place without difficulty
or great expense.
It would also be easier to justify these extensions if the
areas that received them were merely passive victims of
transport from upwind. Unfortunately, many of these areas
themselves contribute to poor air quality downwind. Extending
attainment deadlines, without requiring additional action,
means that these areas by transport will continue to receive
unabated air pollution from outside their borders. This air
pollution will harm the health of the area's own residents,
as well as the health of people who live and work downwind.
New Jersey itself provides a good example of the problem.
Again, more than a third of our air pollution comes from
outside our borders. At the same time, air pollution from
inside New Jersey affects other States downwind. For that
reason, we have filed a petition with the EPA to restrict
emissions from facilities upwind of us, while States downwind
of us have filed similar petitions targeting facilities in
New Jersey. We participated in the research that made it
clear that ozone transport is a significant issue in the
United States, especially in the eastern half of the country.
We have also worked actively with other Northeastern and Mid-
Atlantic States and with the EPA to develop regulatory
programs and legal actions that would address transport.
At the same time, it was never an option to do nothing
while we wait for the transport problem to be solved. For
that reason, we continued to pursue sources of air pollution
that affected our own residents as well as people downwind.
Among other things, we reached an agreement with the operator
of the three largest coal-fired electric generating units in
the State, which will bring advanced air pollution controls
to those units.
Givinig a free pass to areas affected by transport does not
solve the problem of transport. What will solve the problem
of transport is a strong national effort to reduce the
formation of ozone air pollution throughout the country,
complemented by continuing State and local efforts to find
and implement cost-effective ways to reduce air pollution
within our borders.
We therefore ask that the existing bump-up provisions of
the Clean Air Act be left in place.
Thank you for this opportunity to testify. I am happy to
answer any questions you may have.
____
Testimony of Ramon Alvarez, Ph.D., Scientist, Environmental Defense,
Before the Subcommittee on Energy and Air Quality of the Committee on
Energy and Commerce of the U.S. House of Representatives, July 22, 2003
Good morning. My name is Ramon Alvarez and I am an
atmospheric scientist in the Austin, Texas office of
Environmental Defense, a non-profit, non-partisan, non-
governmental environmental organization representing
approximately 300,000 members nationally. Thank you for the
invitation to share with you the experience of the Dallas/
Fort Worth ozone nonattainment area with EPA's attainment
date extension policy.
Summary
Achieving the ozone standard in the Dallas/Fort Worth (DFW)
area and other U.S. communities is of vital importance of
public health. Ozone impairs the body's respiratory system,
aggravates existing respiratory diseases, and has been
associated as a causative factor in the development of asthma
in children. Unfortunately, the DFW area has made little
progress in reducing ozone pollution since the passage of the
1990 Clean Air Act Amendments.
The DFW region twice failed to meet the ozone standard, in
1996 (due to a scientifically flawed plan) and in 1999 (after
failing to develop a plan prior to the clean air deadline).
After EPA threatened sanctions, a new clean air was developed
in April 2000. In 2001, EPA proposed to approve this plan,
including the request from Texas to extend the attainment
date to 2007 without reclassifying the area to severe
nonattainment. EPA has indicated that it will not finalize
this approval in light of the appellate court decisions on
the attainment date extension policy.
As discussed below, transported pollution from Houston has
only a minor and infrequent impact on the DFW area. EPA's
transport policy, even if legal, was thus erroneously applied
in the DFW area, since the evidence shows DFW could attain
the ozone standard even if Houston were to do nothing to
clean up its air pollution.
As public concern about local air pollution has increased,
stakeholders in the DFW area are now more actively working
together to agree on a path forward to clean up the region's
air. Legislative proposals to extend attainment deadlines
pose a serious risk of disrupting these ongoing negotiations
that have a good likelihood of reaching a solution that meets
the needs of all the parties involved. Moreover, any further
delay in deadlines for the DFW area would mean that thousands
of children and other sensitive individuals will continue to
suffer the adverse health effects associated with ozone
pollution.
Failure to Reduce High Ozone Levels Seriously Threatens Public Health
Inhaling ozone significantly harms human health: ozone can
burn cell walls in the lungs and air passages, causing
tissues to swell, chest pain, coughing, irritation and
congestion. Other effects include decreased lung function,
aggravation of asthma, increased susceptibility to bacterial
infection, and generation of scar tissue and lesions in the
respiratory system.
In reviewing recent evidence of the harm caused by ozone,
EPA reached an ominous conclusion on the effects of repeated
and long-term exposure to ozone: ``EPA has concluded that
repeated occurrences of moderate responses, even in otherwise
healthy individuals, may be considered to be adverse since
they could well set the stage for more serious illnesses.''
EPA's conclusion was confirmed by new evidence showing that
children who participate in high activity, outdoor sports in
portions of the Los Angeles air basin are 3.3 times more
likely to develop childhood asthma than children who play
equally active sports in communities with low ozone
environments. For most children who develop asthma, it is an
incurable lifetime affliction. EPA recognizes that whatever
the effect of ozone inhalation on average adults, the impact
on those who suffer from asthma, the elderly, outdoor
workers, and active children are far more severe.
A lifetime of asthma is a high price to exact from our
children for failing to reduce ozone to safer levels. Any
further delay in deadlines to meet the ozone standard would
mean that hundreds of thousands of American children and
other sensitive individuals will suffer the adverse health
effects associated with ozone pollution.
How did Dallas/Fort Worth come to rely on the attainment date extension
policy?
The Dallas/Fort Worth area has had little success in
curbing ozone air pollution since the passage of the 1990
Clean Air Act Amendments. Both the frequency of ozone
exceedances and the peak levels monitored each year have
remained largely unchanged since the late 1980s. (See Exhibit
1). The Dallas/Fort Worth area continues to routinely record
1-hour ozone exceedances, including this year's high value to
date of 161 parts per billion.
Under the 1990 Clean Air Act Amendments, the 4-county
Dallas/Fort Worth area was classified as a moderate
nonattainment area and required to meet the health standard
for ozone by 1996. The State Implementation Plan (SIP)
submitted to EPA in 1994 contained only the Act's minimum
mandatory reduction (15% of the emissions of volatile organic
compounds). Notably, this plan lacked any measures to reduce
nitrogen oxides, significant reductions of which are now
accepted to be essential to achieving the ozone standard. Not
surprisingly, the minimalist VOC-only plan of 1994 failed to
bring the region into attainment by the 1996 deadline. EPA
reclassified (``bumped up'') the Dallas/Fort Worth
nonattainment area from moderate to serious in March 1998.
The bump-up to serious required Texas to prepare a new SIP
by March 1999. The SIP Texas submitted was, by its own
admission, inadequate. Accordingly, EPA found the SIP
incomplete and started the sanctions and Federal
Implementation Plan clocks.
The looming threat of sanctions spurred the development and
submission in April 2000 of a new SIP. This plan relies on
EPA's 1998 attainment date extension policy, which is the
subject of today's hearing. In January 2001, EPA proposed to
approve the April 2000 SIP and extend the attainment date to
November 2007 while retaining the area's serious
classification.
transporation from houston does not prevent the dallas/fort worth area
from attaining
EPA's proposed extension of the DFW area's attainment date
is based on a claim that transported pollution from Houston
jeopardized the DFW area's ability to attain the ozone
standard. The evidence, however, does not support that claim.
We accept the notion that emissions from the Houston/
Galveston nonattainment area can contribute to observed ozone
levels in the DFW area on some days. Since 1996 we have
argued that the control strategy for the DFW area must
address ozone transport. However, we do not believe that
ozone transported from Houston/Galveston would alone prevent
the DFW area from attaining the ozone standard.
EPA justified its proposed extension of the DFW area's
attainment date largely on two analyses performed by Texas:
Ozone source apportionment analysis. On the day with the
highest modeled zone, 2 to 4 ppb of ozone in some portion of
the DFW area cam from Houston sources.
Back trajectory analysis. Air masses entering the DFW area
had trajectories going back to the Houston area on
approximately 10 percent of the days when ozone exceedances
were recorded in DFW between 1993 to 1998.
The only conclusion that can be reached from the analyses
contained in the administrative record is that on a small
number of days, there may be a small amount of additional
ozone in the DFW area that came from Houston. Such a result
is not surprising--ozone air pollution is known to travel
over even longer distances such as from the Midwest to the
Northeast. However, the fundamental question that was never
answered by Texas or EPA is whether the small amount of ozone
originating in Houston that might occasionally arrive in the
DFW area is enough to prevent DFW from attaining the ozone
standard before Houston's attainment date.
A fair evaluation of the evidence would lead to the
conclusion that the Dallas/Fort
[[Page H10102]]
Area could still attain the ozone standard even if Houston
did nothing to clean up its air pollution. For
example, Houston's emissions could be expected to impact
the DFW area less than one time per year. Even if all of
the monitored ozone on those relatively rare days came
from Houston, the DFW area could still comply with the 1-
hour standard, which allows for 1 exceedance per year.
Thus, EPA's transport policy, even if it were legal, was
erroneously applied in the DFW area.
Because transport from Houston is only a minor component of
Dallas/Fort Worth's ozone air pollution, attainment of the 1-
hour ozone standard will only be achieved after sufficient
local controls are in place to eliminate the vast majority of
exceedances that are the result of ozone precursor emissions
generated within the DFW area itself. It is misguided to
blame the small amount of transport from an upwind area as
the reason to once again extend a deadline established to
ensure the DFW area's more than 4 million residents can
breathe healthier air.
legislation threatens locally-driven, win-win solutions
In both the Dallas/Fort Worth and Beaumont/Port Arthur
areas, legislative proposals at this time pose a serious risk
of disrupting ongoing negotiations that have a good
likelihood of reaching a solution that meets the needs of all
the parties involved.
In the Dallas/Fort Worth area, local government officials,
business leaders, EPA, the Texas Commission on Environmental
Quality and environmental groups are working in a cooperative
spirit to agree on a path forward to cleaning up the region's
air. One outcome might be expeditious attainment of the 1-
hour standard and early compliance with the 8-hour ozone
standard now being implemented by EPA. I and other DFW area
stakeholders feel that the current air quality challenges
facing the region can best be handled at the local level and
that Federal legislation on the attainment data extension
policy is not needed. (See for example Exhibit 2, e-mail from
Ron Harris, Collin County Judge)
In Beaumont/Port Arthur (BPA), discussions are actively
taking place between all the parties (including the
environmental plaintiffs, regulated industry, Texas and EPA)
to respond to the 5th Circuit Court decision on EPA's use of
the attainment date extension policy for the BPA area. These
discussions could lead to a negotiated agreement whereby the
area would not be bumped up to severe. EPA has already
demonstrated the Act's potential flexibility by proposing, in
the alternative, a single or double bump up for BPA.
exhibit 2, r. alvarez--text of e-mail from Ron Harris dated 7/19/2003
To: Ramon Alvarez
From: Ron Harris, Collin County Judge, Co-Chair, North Texas
Clean Air Steering Committee
As we discussed yesterday, please relay to the House
Committee hearings on delay of attainment dates the
following:
The North Texas Area is currently working closely with both
local government, business, EPA, Texas Commission on
Environmental Quality and specifically Environmental Defense
along with Public Citizen to continue efforts at cleaning up
the air in North Texas.
The efforts include working with the Texas Clean Air
Working Group and the Texas Legislature. In my opinion, we
are making progress toward attainment of the National Clean
Air Standard.
At this juncture, I think it would be better left to local
partnerships to work and not change the rules again, until
such partnerships become unsuccessful and mistrust from those
involved results in a slowing down of the clean air goals.
____
Written Testimony of J. David Farren, Southern Environmental Law Center
Before the U.S. House of Representatives, Committee on Energy and
Commerce, Subcommittee on Energy and Air Quality, Honorable Joe Barton,
Texas, Chairman: Hearing on Bump Up Policy Under Title I of the Clean
Air Act, July 22, 2003
introduction and summary
Mr. Chairman and Members of the Subcommittee: Thank you for
the opportunity to provide information on the application of
EPA's Downwind Extension Policy as an alternative to
reclassification, or ``bump up'' as the appropriate mechanism
to extend the attainment date under Section 181 of the Clean
Air Act (the ``Act''). As an attorney with the Southern
Environmental Law Center, which has an office in Atlanta, I
have worked closely over the past decade with conservation
groups, other citizen organizations, and health professionals
in Georgia on issues related to air quality.
The Atlanta area has never achieved the ``one-hour''
National Ambient Air Quality Standard (NAAQS) for ground
level ozone, an important step in the effort to protect the
health and quality of life of the Atlanta area's four million
residents. The Eleventh Circuit Court of Appeals ruled last
month that the Downwind Extension Policy is illegal as
applied to the Atlanta area. For the following reasons, I
urge this Subcommittee not to recommend changes to the Act
that would undermine its carefully crafted deadline-driven
scheme:
The failure to achieve attainment of the one-hour ozone
NAAQS in Atlanta has very little to do with pollution
transport and, instead, results overwhelmingly from the
failure timely to institute available controls on local
sources of pollution. In fact, only 9% of the violation days
in Atlanta are contributed to by transport.
Georgia officials project that Atlanta will achieve the
``one-hour'' ozone standard by 2004, which will avoid any
additional consequences under the Act that would result from
the failure to meet the 2005 deadline applicable to
``severe'' nonattainment Areas.
Reclassification creates a planning opportunity to ensure
that the ``one-hour'' standard is attained no later than
2005. In addition to the mandatory measures specified in the
Act for ``severe'' areas, Atlanta can choose to implement
other measures of its choosing to attain the ``one-hour''
standard and also to make progress toward meeting the new
``eight-hour'' standard which EPA has determined to be
necessary to protect public health.
The prompt reduction of ozone pollution in Atlanta will
result in significant public health benefits, increased
productivity and reduced health care costs. A study published
in the Journal of the American Medical Association co-
authored by an Atlanta pediatric pulmonologist found that
reducing ozone precursors during the 1996 Olympics led to a
significant decline in acute respiratory illness.
history of delay in atlanta
Ground-level ozone, one of the main harmful ingredients in
smog, is produced when its precursors, volatile organic
compounds (``VOCs'') and nitrogen oxides (``NOX'')
from motor vehicles, smokestacks, and other sources, react in
the presence of sunlight. In the thirty years since EPA
established the first national ozone standard in 1971,
Georgia has never adopted an effective strategy for
achieving the pollution reductions necessary to bring the
Atlanta area into attainment with the ``one-hour'' ozone
standard. Under the 1990 Amendments to the Clean Air Act,
the Atlanta area was designated a ``serious'' ozone
nonattainment area and was given almost a decade, until
November 15, 1999, to develop and implement a plan to
control air pollution to attain the NAAQS for ground-level
ozone. Unfortunately, the history in Atlanta has been to
delay the adoption and enforcement of readily available
local controls on ozone precursors. As a result of this
failure, hundreds of thousands of Atlantans continue to
suffer the adverse health effects associated with ozone,
despite the passage of the 1999 deadline for Georgia to
implement the emissions reductions required for attainment
of the NAAQS.
The 1990 Amendments established a 1994 deadline for Georgia
and other states to submit to EPA a plan that would provide
for attainment of the NAAQS by the 1999 deadline. See 42
U.S.C. Sec. 7511a(c)(2)(A). It was not until five years after
this submittal deadline, October 28, 1999, that Georgia
finally submitted for approval its proposed State
Implementation Plan (SIP). Even then, EPA proposed to
disapprove the SIP unless Georgia included additional
pollution control measures to achieve further emissions
reductions. See 64 Fed. Reg. 70,478 (Dec. 16, 1999).
A revised SIP with various modifications was not submitted
until July 17, 2001, six years after the submittal deadline
and almost two years after the deadline for actual
attainment. Rather than demonstrating timely attainment of
the NAAQS by 1999, this SIP purports to demonstrate
attainment by the year 2004 based on EPA's 1998 ``Guidance on
Extension of Attainment Dates for Downwind Transport Areas''
(the ``Downwind Extension Policy''). Thus, the delay in
attaining the ozone NAAQS in Atlanta is the result of
Georgia's delay in developing and implementing a plan to
address the longstanding local air pollution problem in
Atlanta.
transport is a very small factor in atlanta's ozone pollution
Never formally adopted as a rule by EPA, the Extension
Policy permits the extension of the attainment date without
``bump up'' for some ``moderate'' and ``serious''
nonattainment areas based on EPA's belief that certain of
these areas have been hindered in their attempts to meet air
quality standards by pollution transported from other states.
The Extension Policy, however, does not require a showing of
``but, for'' causation. To be eligible for a waiver of the
attainment deadline, the 1999 Federal Register notice
announcing the policy explains that downwind areas only need
show that transport ``significantly contributes to downwind
nonattainment,'' not that transport has rendered attainment
by the deadline impossible or even impracticable. 64 Fed.
Reg. 14,441 (March 25, 1999).
For Georgia, by example, to be eligible for the policy, it
was not required to demonstrate that it was unable to attain
the NAAQS in Atlanta by 1999 through more aggressive control
of local pollution. In addition, EPA was exceedingly liberal
in its interpretation of the ``significantly affected''
standard for application of the policy. In fact, EPA found
that ``upwind controls are predicted to reduce the number of
exceedances in Atlanta by 9 percent.'' 63 Fed. Reg. 57,446
(Oct. 27, 1998). This means that over 90% of violation days
in Atlanta result from local emissions. If Congress were to
change the Act to allow extensions based on small amounts of
transport, as occurred with Atlanta, almost any area could
claim that it is somewhat affected, delaying public health
protections for many millions of American families.
[[Page H10103]]
As Georgia acknowledges in its most recent SIP revision,
the ``worst ozone episodes'' occur during ``multiple day
stagnation and recirculation events.'' In other words, the
smog days result from extended periods of calm weather where
local pollutants hover in the air, not on days where the
wind is bringing in emissions from out of state. Thus, it
is clear that the most effective way to achieve the public
health protections of ozone pollution reduction is to
focus on local controls, which Georgia has been reluctant
to do.
According to Georgia's submitted SIP, the majority of the
emissions that cause ozone in Atlanta come from motor
vehicles rather than from transport or stationary sources.
The nature of the transportation network, the resulting
number of vehicle miles traveled in the nonattainment area
and the failure to address this issue are directly related to
the severity of the ozone pollution problem. As Georgia
acknowledges in its SIP, smog in the area ``is spreading
outward in the shape of a giant doughnut,'' and is greatly
exacerbated by the fact that Atlantans drive about 35 miles
per day for every man, woman and child--more miles per capita
than in any other major city in the United States.
Unfortunately, Georgia has been extremely reluctant to
address transportation emissions. For example, just this
spring it further delayed the implementation of a new low-
sulfur fuel rule in the Atlanta nonattainment area at the
request of interest groups within the oil industry. In
addition, Georgia has repeatedly fallen through on promises
to provide funding for transportation options to single
occupant vehicle driving, such as commuter rail, HOV lanes
and other air-quality beneficial transportation investments.
Further, the Atlanta transit system languishes with the
highest fare in the country, service cutbacks and no support
from the State or suburban counties. Georgia has not
attempted to develop and implement timely strategies and
programs that have been shown to effectively reduce vehicle
travel and motor vehicle emissions. Many such strategies are
identified in the Act itself, 42 U.S.C. Sec. 7408(f)(1)(A),
and even are illustrated in Georgia's SIP as capable of
achieving prompt reductions in summer ozone levels in
Atlanta.
Georgia Can Readily achieve the ``one hour'' standard in Atlanta with
local controls
The proposed SIP for Atlanta based on the extension policy,
recently struck down by the Eleventh Circuit, projected that
air quality will be improved sufficiently to meet the one
hour standard by 2004, after out of state power plants
institute required controls under the national NOX
SIP call agreement. Thus, the strategy chosen by Georgia for
Atlanta was to sit back and do less to control pollution
locally, based on the extension policy, rather than institute
more strategies to achieve the NAAQS by 1999.
While this choice for Atlanta is now a fait accompli, it
has consequences for the area, the primary one being the
delay in public health benefits. The failure to attain also
means that Atlanta must be reclassified to ``severe'' status
and prepare a new SIP, which contains certain additional
control measures. Because Atlanta had projected that it could
attain the ``one-hour'' standard even under the prior SIP by
2004, Georgia faces little danger of not meeting the 2005
deadline for `'severe'' areas. These additional control
measures, however, should in no sense be considered
superfluous, as they are required under the Act to ensure
attainment by the new deadline. In addition, the additional
measures will be necessary to meet EPA's new ``eight-hour''
ozone standard beginning next year.
Further, to the extent that transport is a small
contributor to nonattainment in Atlanta, many of the
appropriate controls are in the process of being implemented.
For example, Alabama, the largest source of transport that
affects Atlanta, has begun this year to implement
NOX controls for most of its power plants. Of
course, the most effective way to reduce stationary source
pollution in Georgia would be to require further reductions
from in-state stationary sources, which are second only to
transportation emissions as a source of ozone precursors
in Atlanta. For example, two of the older power plants in
Georgia, McDonough and Yates, lack the post-combustion
NOX controls of modern facilities.
substantial public health benefits can be achieved through prompt ozone
reduction
Ozone is a lung-scarring irritant that affects everyone in
the Atlanta region and which can cause or exacerbate serious
health problems. For example, people with asthma and others
who experience breathing difficulties must limit outdoor
activities on days with high ozone levels. Frequently during
the spring and summer months, air quality in Atlanta fails to
meet the ozone NAAQS established by EPA for the protection of
public health.
According to EPA, in 1999, the year established under the
Act for attainment, Atlanta violated the existing ``one-
hour'' ozone standard on 23 days and exceeded the ``eight-
hour'' standard on 69 days. See Georgia Environmental
Protection Division air quality data posted at http://
www.air.dnr.state.ga.us/tmp/99exceedences/old/index.html.
(Due to more favorable weather conditions in the last couple
of years, the number of violation days has been lower, as has
occurred during previous periods of especially favorable
weather patterns.) This means that on many summer days in
Atlanta it is not safe for kids to go outside for recess, for
the elderly to be working in their gardens and walking in the
neighborhood or for healthy adults to exercise outdoors.
Evidence regarding the adverse health effects attributable
to ozone pollution strongly influenced the adoption of the
1990 Amendments to the Act. Expert testimony presented to
Congress included evidence that: ``Ninety percent of the
ozone breathed into the lung is never exhaled. Instead, the
ozone molecules react with sensitive lung tissues, irritating
and inflaming the lungs. This can cause a host of negative
health consequences, including chest pains, shortness of
breath, coughing, nausea, throat irritation, and increased
susceptibility to respiratory infections. . . . Some
scientific evidence indicates that over the long term,
repeated exposure to ozone pollution may scar lung tissue
permanently. . . . Ultimately, emphysema or lung cancer may
result. . . . Young children may be especially vulnerable to
both the acute and permanent effects of ozone pollution.''
H.R. Rep. No. 101-490 (1990), reprinted in Environment and
Natural Resources Policy Division of the Congressional
Research Service, Legislative History of the Clean Air Act
Amendments of 1990 3021, 3223 (1993).
The frequent, dangerously high ozone levels in Atlanta
during warmer months affect not only children and persons
with impaired respiratory systems, but also healthy adults.
As the former EPA Administrator concluded: ``Exposure to
ozone for six to seven hours at relatively low concentrations
has been found to reduce lung function significantly in
normal, healthy people during periods of moderate exercise.
This decrease in lung function is accompanied by such
symptoms as chest pain, coughing, nausea, and pulmonary
congestion.'' 60 Fed. Reg. 4712, 4712 (Jan. 24, 1995). In
reviewing more recent evidence of the harm caused by ozone,
EPA published a lengthy notice summarizing the adverse health
effects of both short-term and long-term ozone exposure.
According to the Agency, the effects of short-term exposure
on healthy individuals include reduced lung function, chest
pain, reduced productivity, increased susceptibility to
respiratory infection, and pulmonary inflammation. 66 Fed.
Reg. 57,268, 57,274-75 (Nov. 14, 2001). With respect to
repeated and long-term exposure, the finding is ominous:
``EPA has concluded that repeated occurrences of moderate
responses, even in otherwise healthy individuals, may be
considered to be adverse since they could well set the stage
for more serious illness.'' Id. at 57,275.
These general findings by EPA have been underscored by
additional research conducted in many cities, including
Atlanta. One recent study published in the prestigious peer-
reviewed Journal of the American Medical Association on
February 21, 2001 demonstrates that when ozone was reduced
in Atlanta by encouraging alternatives to motor vehicle
travel during the 1996 Olympic Games, the number of
children requiring emergency or urgent care for asthma
decreased dramatically. There was a 41.6% decline in
visits for Medicaid claimants, a 44.1% decline for HMO
enrollees and a 19.1% decline in overall hospital asthma
admissions. A copy of this study is appended to this
testimony, which is entitled ``Impact of Changes in
Transportation and Commuting Behaviors During the 1995
Summer Olympic Games in Atlanta on Air Quality and
Childhood Asthma.''
The study specifically tied the positive public health
results to the lower ozone concentrations due to a reduction
in vehicle emissions. Overall, during the Olympics there was
a 27.9% decrease in ozone and no violations of the ``one-
hour'' standard. In contrast, the standard was violated on
five days immediately before and after the games. While
favorable weather conditions contributed somewhat to the
lower pollution levels, this dramatic percentage decrease in
ozone pollution and emergency care was substantially
contributed to by the 22.5% decrease in peak morning traffic
counts resulting from travel demand strategies, increased
transit service and other programs encouraged in the Act to
reduce transportation emissions.
conclusion
``Bump up'' of Atlanta to ``severe'' is an example of the
Act working as Congress intended: If a deadline is not met, a
new SIP with additional controls is required to ensure that a
new deadline is met. The most recent Supreme Court case
addressing the Clean Air Act statutory scheme noted that the
NAAQS is the ``engine that drives nearly all of Title I of
the CAA,'' id. at 468, and characterized the attainment
deadline provisions as the ``backbone'' of the ozone control
requirements for nonattainment areas. Whitman v. Am. Trucking
Ass'ns, Inc, 531 U.S. 457 (2001). Codification of EPA's
extension policy would fundamentally weaken the deadline and
incentive structure in the Act carefully crafted by Congress
in 1990. Instead, it would reward officials, at the expense
of many citizens--including the four million residents of
Atlanta, who fail to take all appropriate steps to address
local ozone pollution. This would set a dangerous precedent
that would undermine the Act at a time when the scientific
consensus is that more, rather than less, must be done to
protect the public from ozone pollution.
[[Page H10104]]
____
Testimony of David S. Baron, Attorney, Earthjustice, Before the
Subcommittee on Energy and Air Quality of the Committee on Energy and
Commerce, U.S. House of Representatives, July 22, 2003
Introduction and Summary
Mr. Chairman and members of the Subcommittee, my name is
David S. Baron. I am an attorney with the Washington, D.C.,
office of Earthjustice, a nonprofit law firm that represents
conservation and community groups on a wide range of
environmental and public health issues, including air
quality. Our clients on clean air matters include the
American Lung Association, Sierra Club, Environmental
defense, and others. I am very familiar with the Clean Air
Act, having specialized in enforcement of that statute for
more than twenty years at the local, state, and national
levels. In 1996-97, I served on the Subcommittee for
Development of Ozone, Particulate Matter and Regional Haze
Implementation Programs, a Federal Advisory Committee to the
U.S. Environmental Protection Agency (EPA). I have also
taught environmental law courses as an adjunct professor at
the University of Arizona College of Law and Tulane Law
School.
I appreciate your invitation to discuss the Clean Air Act's
requirements for reclassification (or ``bump up'') of areas
that fail to timely meet clean air standards, and EPA's prior
attempts to waive bump up for cities affected somewhat by air
pollution transported from other areas. I strongly believe
that EPA's waiver of bump ups via its ``downwind extension
policy'' not only violated the Clean Air Act, but also
wrongly delayed measures that are sorely needed to protect
public health in these and other communities.
Background
In the late 1990's, EPA announced an ``Attainment Date
Extension Policy'' (sometimes called the ``downwind
extension'' policy) that was not authorized by the Clean Air
Act. This unfounded policy allowed industries to pollute at
higher levels for longer than the Clean Air act authorized
merely because they were located in cities affected somewhat
by pollution transported from other areas. EPA applied the
policy to unlawfully extend clean air deadlines for a number
of cities without requiring them to be reclassified into more
protective pollution categories with stronger pollution
controls. The courts invalidated this policy as being
completely contrary to both the language and purpose of the
Clean Air Act.
The 1990 Clean Air Act, signed by the first President Bush,
classified cities as marginal, moderate, serious or severe
based on the severity of their ozone pollution problem. Areas
with higher classifications were given more time to meet
clean air standards, but also had to adopt stronger anti-
pollution measures. The clean air deadline for moderate areas
was 1996, for serious areas 1999 and for severe areas 2005 or
2007.
Wher a city missed its clean air deadline, the Act required
that it be reclassified (``bumped up'') to the next highest
classification. For example, if a serious area failed to meet
standards by 1999, it was to be reclassified to severe. It
would then be given until 2005 to meet standards, but would
also have to adopt the stronger pollution controls
required for severe areas.
Reclassification triggers stronger pollution control
requirements for industry as well as additional measures to
reduce pollution from car and truck exhaust. These stronger
measures are already required in numerous communities
throughout the nation, including Chicago, Milwaukee,
Baltimore, Philadelphia, New York, Los Angeles, Wilmington,
Trenton, Sacramento, Ventura County (CA), Riverside County
(CA), and San Bernardino County (CA).
Relying on its unfounded extension policy, EPA extended the
clear air deadlines for a number of cities without bumping
them up to the higher pollution categories that would require
the adoption of more protective ozone control measures to
help address the adverse public health impacts resulting from
the additional delay. EPA also allowed these areas to
postpone the adoption and implementation of local measures
that were necessary for each area to attain the ozone health
standard on the original schedule, thereby postponing a large
portion of the public health benefits from reduced ozone that
these measures would have achieved. In addition, EPA waived
the statutory requirement that each area continue to reduce
emissions by 3% annually until the area attains the standard.
Three separate federal appellate courts have all ruled that
EPA's policy violates the language and purpose of the Clean
Air Act. In voiding the extension policy as applied to the
Washington, D.C. area, Chief Judge David Ginsberg of the U.S.
Court of Appeals for the D.C. Circuit, wrote that ``to permit
an extension of the sort urged by the EPA would subvert the
purposes of the Act.'' Sierra Club v. EPA, 294 F.3d 155, 161
(D.C. Cir. 2002) (emphasis added).
harm to public health from epa's downwind extension policy
EPA's application of this discredited policy has delayed
adoption of additional pollution controls that are badly
needed to meet clean air standards in Atlanta, Washington,
DC, Baton Rouge, and Beaumont Texas. The illegal extensions
have burdened the public in those areas with dirty air until
at least 2005 without the additional pollution controls
already required in other cities. As a result of EPA's
illegal deadline extensions, the air in these cities is
substantially dirtier than it should be.
If the Clean Air Act were weakened in an attempt to
legalize EPA's extension policy, this would delay the
adoption of badly needed antipollution measures in the
affected communities. Last summer, the Washington, DC area,
for example, suffered from the worst ozone pollution in more
than a decade, exceeding the 1-hour standard on nine days,
and recording another 19 days when the air was deemed
unhealthful for children and persons with lung ailments. On
all of these days, children were warned to limit outdoor
play. By some estimates, breathing difficulties during a
typical smoggy summer in the DC area send 2,400 people to the
hospital, and cause 130,000 asthma attacks.
Last year alone, the Beaumont/Port Arthur, Dallas/Fort
Worth, and Houston/Galveston regions exceeded the one-hour
ozone standard on three, seven, and 26 days respectively.
Atlanta exceeded the one-hour ozone standard seven times and
the 8-hour ozone standard 38 times. Ultimately, delay of
stronger pollution controls has left the air in these
cities more unhealthful than it would have been had the
law been followed.
Adoption of the EPA policy would also make it harder for
other communities to meet clean air standards. Pollution from
cities like Washington, Atlanta, Beaumont, and Baton Rouge
can be transported elsewhere, where it contributes to ozone
violations. Cities like Baltimore, Philadelphia, and New York
that have already adopted more protective ``severe'' area
measures should not have to suffer pollution from upwind
cities that have failed to adopt the same level of control.
EPA's downwind extension policy is unfair to states that did the right
thing
As noted above, many states and cities have already adopted
the more protective control measures associated with higher
pollution classifications. These areas are also affected by
transported pollution, a situation understood by Congress at
the time that the 1990 amendments placed them in these higher
classifications. Adoption of EPA's policy, accordingly, would
have an inequitable impact on areas that are already doing
the right thing without resorting to delays that imperil the
health of their citizens.
EPA's extension policy has been opposed by Republicans as
well as Democrats. In 1999, the State of New York under a
Republican administration, criticized EPA's extension policy.
The State noted the inequity of allowing some states to avoid
achieving timely clean air while other states--also affected
by transported pollution like New York--were already
undertaking necessary, effective control steps: ``[T]hese
more effective control steps [required for higher
nonattainment classifications] already have been implemented
in many areas of the country and have been proven to reduce
the emissions of ozone precursors. Implementation of these
measures would help level the playing field among the states,
provide some localized relief of ozone levels, and help the
affected areas in their efforts to achieve the revised eight-
hour ozone standard.''
In 1999, the State of Ohio, also under a Republican
administration, criticized this same attainment date
extension policy and approach: ``U.S. EPA is rewriting one of
the most important and substantive measures placed in the
1990 CAA. . . .
``Ohio EPA does not believe that the CAA intended that
extensions be granted to areas which have not demonstrated
attainment. In some cases, these areas have not implemented
current CAA requirements and would not achieve the 1-hour
ozone standard even after transport had been addressed. These
areas need an additional level of local controls, which is
the precise purpose of the bump-up provisions of the CAA.''
Thus, a roll back of pollution control requirements under a
policy will harm the public health of citizens locally and
regionally by delaying more rigorous ozone pollution
abatement measures needed to meet clean air standards.
In its unsuccessful defense of its extension policy, EPA
claimed that deadline extensions and bump-up waivers for some
areas are justified because those areas are impacted somewhat
by pollution transported from other areas (generally within
the same state). But other cities with higher
classifications--and therefore stronger local pollution
control requirements--are also impacted by transported
pollution--in some cases to a much greater extent. For
example, transported emissions account for a smaller
percentage (24%) of the ozone problem in the Washington, D.C.
area than in areas that were previously classified as severe,
such as Baltimore (56%), Philadelphia (32%), or New York
(45%). Conversely, EPA's data for Atlanta shows that
implementation of the NOX SIP call controls would
eliminate only 9% of the days with expected ozone violations.
For Baton Rouge, EPA has found that only 7% of ozone
exceedance days between 1996 and 2000 were potentially
associated with transported pollution from Houston.
This situation was also true when Congress adopted the 1990
amendments and established the classifications system with
its consequences for failure to attain air quality standards.
Indeed, Congress was aware of EPA's assessment of the ozone
transport problem in its post-1987 attainment date analysis
of he reasons why ozone areas failed to attain, and adopted
into law EPA's decision ``not to allow a delay in submittal
of the post-1987 ozone attainment demonstrations and revised
SIPs for areas affected by [regional transport].'' 52 Fed.
Reg. 45,874.
[[Page H10105]]
current circumstances make EPA's extension policy even less defensible
EPA's policy was ill-advised when it was adopted in 1999,
for many of the same reasons given by Ohio and New York
above. But whether or not the policy was a good idea then,
circumstances have changed in such a way that its
codification now would be a terrible idea. Technical advances
reflected in EPA's new MOBILE VI emissions estimation model
are showing that many areas have much larger local emissions
problems than were previously thought, and greater local
emission reductions will therefore be needed. Moreover, with
the upcoming implementation of EPA's more protective 8-hour
ozone standard, the areas affected by EPA's policy, and many
other areas as well, will need to implement the suite of
protective control measures required in the 1990 Clean Air
Act Amendments, in addition to reductions in transported
pollution. Many of the areas for which EPA has sought to
avoid the stronger pollution control measures associated with
reclassification are already exceeding the 8-hour ozone
standard repeatedly each year. It is insupportable to delay
local control measures needed to reduce these annual
exceedances, thereby exacerbating local air quality and
public health problems, and forestalling the meaningful steps
that will be necessary to attain the 1-hour and 8-hour ozone
standards.
Mr. HOLT. Mr. Speaker, I rise in support of the motion to instruct
offered by my colleague from Texas, Eddie Bernice Johnson.
Ms. Johnson is understandably upset about the provision she is trying
to remove from the energy conference report. Under a shroud of secrecy,
the way virtually all of the energy negotiations have happened so far,
a provision was slipped in that will extend deadlines for cities to
clean up their dirty air. This will have dramatic effects on the health
of Ms. Johnson's constituents.
I'm not here because of any city in my district that isn't complying
with clean air regulations. I'm here because New Jersey has the
unfortunate distinction of being number one in worst smog pollution for
2002, according to a recent New Jersey Public Interest Research Group
Report. Even by the EPA's 8-hour standard, New Jersey has the second-
worst pollution in the country.
New Jersey's efforts to clean up our air are laudable. The state has
implemented a large number of ozone control measures and even
negotiated a deal to close two coal-fired power plants in a neighboring
state. But there is simply no way that the state can adequately tackle
this problem--New Jersey can't control the jet stream. Because
prevailing winds carry pollution from plants in the Midwest to the East
Coast, much of the smog, soot, and fine particulates that endanger the
health of state residents do not come from in-state sources.
That's why the federal government needs to take an active role. This
was the motivation behind the 1970 Clean Air Act and the New Source
Review rules. The Clean air Act has helped the country take major steps
towards making the air we breathe better for our health.
So just like Ms. Johnson, I am dismayed to see that members of the
energy conference committee have slipped in this provision that will
undermine the spirit and the letter of the Clean Air Act.
It seems that some of the conferees are working in concert with the
Bush Administration to conduct a frontal assault on clean air
protections and to let polluters get out of making necessary
environmental upgrades.
Take New Source Review, for example. NSR is an important part of the
Clean Air Act that requires power plants, chemical factories, and other
large industrial facilities to adopt effective emission controls when
expansions or upgrades lead to increased pollution. According to the
EPA, this has meant keeping 300 million tons of pollution out of the
atmosphere in areas that meet national air quality standards.
The Administration has proposed changes to the New Source Review
program that will create gaping loopholes in clean air protections.
Facilities would be allowed to increase the amount of pollution they
emit if the cost of making a change is less than a certain percentage
of the cost of the entire facility. Thus companies can easily make
incremental changes to renovate a facility without triggering NSR. And
even if the cost of the upgrade does exceed the percentage trigger,
plants will still not need to implement pollution controls if the
upgrade consists of replacing existing equipment with new equipment
performing the same function, regardless of cost.
These are changes that have been clearly demonstrated by numerous
experts--including Abt Associates, who has done research for the EPA--
that will result in more premature deaths and more cases of asthma and
other respiratory illnesses.
I came to Congress five years ago to represent the people of the 12th
District of New Jersey. It's pretty obvious that among the more
important responsibilities I have in representing my constituents is
standing up for them when someone is making them sick or killing them--
the way air pollution is now.
That is why I urge all of my colleagues to support the Johnson motion
to instruct.
Ms. WOOLSEY. Mr. Speaker, I would like to thank the gentlewoman from
Texas for offering this Motion to Instruct Energy Bill Conferees.
Instead of working on an Energy Bill that will work to solve our
nation's energy crisis, the Republicans are holding a conference
without any Democrats and now they are trying to add in riders to
weaken the Clean Air Act. What will they think of next?
This rider allows polluters to further delay establishing clean air
controls--contributing to air pollution that bellows out of giant
smokestacks and puffs out of tailpipes. This air pollution has led to a
record number of people with asthma, particularly in our cities. By
trying to attach this rider to the Energy Bill, the Republicans are
showing once again that they do not value clean air or the health of
Americans.
And the sad fact is that children are the most vulnerable to air
pollution. They spend more time outdoors, they inhale more pollutant
per body weight, and their bodies, lungs and immune systems are still
developing. Children are particularly vulnerable to smog and soot--
continued exposure can scar and severely damage children's lungs.
Instead of weakening the Clean Air Act, the Republicans should be
using this opportunity to develop and use new technologies and to cut
our reliance on dirty energy fuels. Unfortunately, in the Energy
Conference, the Republicans have chosen the interests of big business
over the health of the American people.
Mr. Speaker, I ask my colleagues to join me in supporting this motion
to instruct.
Mr. BURGESS. Mr. Speaker, I rise to speak against the Motion to
Instruct Conferees on the H.R. 6, The Energy Policy Act.
As discussed thus far, under the Clean Air Act of 1990, areas
designated as ``severe'' nonattainment areas, such as Houston, must
meet the 1-hour standard by 2007, and Dallas, classified as ``serious''
areas was required to meet the 1-hour standard by 2005.
Wind currents can transport ozone and its chemical components over
long distances, which can have an adverse affect on the air quality of
areas that are downwind of more severe nonattainment areas. For
example, Houston's air quality can impact Dallas's air quality.
In 1998, under the direction of President Clinton's EPA Administrator
Carol Browner, the EPA promulgated transport policy rules that allowed
the EPA to allow affected ``moderate'' and ``serious'' areas until 2007
to meet the 1-hour standard. This common sense rule simply allows
cities to take into account the ozone that is transported from other
cities.
Strict judicial interpretation of the Clean Air Act of 1990 said that
the EPA did not have statutory authority to promulgate this rule. As a
strict constitutionalist, I was glad to see the judicial restraint
exhibited by these decisions.
However, I think it is important to note that Congress did not give
the EPA this authority under the Clean Air Act of 1990 because Congress
was not aware of the impact of ozone transport on air quality at that
time. Since 1990, the science has improved to the point that we are
aware of and better able to determine the impact of the transport of
ground level ozone.
That is why there is a provision in this year's energy bill to give
EPA that authority, if they so choose.
Some have claimed that this will ``roll back'' the Clean Air Act, and
that is just not true. The State of Texas and other affected States and
the cities of Dallas and Fort Worth are not going to stop working
toward clear air. In fact, as recently as reported last Friday in the
Fort Worth Star-Telegram, the North Texas Clean Air Steering Committee
said that they will not slow down efforts to clean the air if Congress
pushes back the deadline.
As a member of the Transportation and Infrastructure Committee, I do
not support tying the issue of ozone transport to my district's
transportation funding. I do not believe that taking away
transportation funding from the Dallas-Fort Worth region will result in
improved air quality.
In fact, I believe eroding our transportation funding would adversely
affect air quality because studies have shown that automobiles operate
more efficiently at around 60 miles per hour than at lower speeds such
as those cars idling during bumper-to-bumper traffic in bottleneck
areas, such as on Interstate 35 East in my district. A more efficient
motor decreases the amount of ozone-creating pollutants that are
released into the air. This is especially important to the Dallas-Fort
Worth region because EPA studies have shown that our region's air
quality is especially affected by mobile-source (automobile) pollution.
If my colleagues disagree with me and believe that we should decrease
transportation funding in order to improve air quality, I am more than
happy to accept their piece of the transportation funding pie. I know
we all agree--we need to keep our cash on the dash!
Clean air is one of the most important legacies that we can leave our
children. If we are going to preserve this world for future
generations, we must take steps that will protect our
[[Page H10106]]
natural resources, but we must also not harm our economy.
If you cannot identify the source, and control the source, you cannot
effectively reduce ozone. I will vote against the Motion to Instruct
Conferees on H.R. 6.
Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I yield back the
balance of my time.
The SPEAKER pro tempore. Without objection, the previous question is
ordered.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to instruct
offered by the gentlewoman from Texas (Ms. Eddie Bernice Johnson).
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. BARTON of Texas. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this motion will be postponed.
General Leave
Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I ask unanimous
consent that all Members may have 5 legislative days within which to
revise and extend their remarks on this motion to instruct.
The SPEAKER pro tempore. Is there objection to the request of the
gentlewoman from Texas?
There was no objection.
____________________